State v. Gieseke

Decision Date18 February 1908
Citation209 Mo. 331,108 S.W. 525
PartiesSTATE v. GIESEKE.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Walter Gieseke was convicted of murder in the second degree, and appeals. Affirmed.

Joseph McCoy, John B. Denvir, Jr., and S. S. Bass, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On February 5, 1906, the grand jury of the city of St. Louis returned an indictment against the defendant, charging him with murder in the first degree. At the January term, 1907, the defendant was tried and convicted of murder in the second degree, and his punishment assessed at 10 years' imprisonment in the penitentiary. His motions for new trial and in arrest of judgment were heard and overruled, and the defendant appeals.

The state's evidence tended to prove that the defendant was a butcher by occupation, and lived in the city of St. Louis. The deceased, Charles Schaefer, and his wife occupied rooms in the second story of an apartment house in said city. The mother of the defendant had done some sewing for the wife of the deceased, and had been delayed in the collection of her account for the same, which amounted to $1.20. About 7 o'clock on the evening of November 8, 1905, the defendant, his mother, and a younger brother called at the home of the deceased, and found him and his wife eating supper. After asking for the money due the mother of the defendant, the wife of the deceased said she was poor and could not pay it all at once, but desired to be allowed to pay it in two or three payments. This was not satisfactory to the defendant's mother, and some words were exchanged between the parties. The deceased told his wife to push defendant's mother down the stairs, and ordered the defendant to leave the place. About that time the defendant drew his pistol upon the deceased, and the latter left the house, saying he was going to get a policeman to arrest the defendant, and walked through a near-by saloon. The defendant waited on the porch of the house of the deceased for awhile, and, when asked by the deceased's wife if he intended to shoot, her husband replied, "It is none of your d____ business." After sitting on the porch for some time with his pistol in his hand, the defendant got up and went into the same saloon through which the deceased had gone, and took two or three drinks of liquor. The deceased had inquired for a policeman in the saloon, and had gone out of another door. The defendant stated to a man in the saloon that he had had trouble with the man upstairs, trying to collect for some clothing that his mother had sewed for them; that his younger brother had been there to collect the bill, and the deceased had threatened to throw him and his mother down the stairs if either of them ever came there again; that he would not stand for that, and he was going to get even with that man. Defendant then took his pistol out of one pocket and put it into another pocket and walked out of the saloon. In a few minutes the deceased returned to his porch, saying he could not find a policeman, and the defendant said: "I have got you, you son of a b____." The deceased tried to grab the defendant's pistol, and the defendant fired twice at the deceased, but missed him. The struggle after the pistol continued, and the defendant backed down the stairs out into the yard where he fired three more shots, the third shot taking effect in the body of the deceased. The deceased then went into his room, an ambulance was sent for, and he was taken to the City Hospital, where he died two days later. The defendant, after the shooting, returned to the saloon, took out his pistol, and laid it on the bar saying: "I got my man." After taking another drink, the defendant stepped out on the sidewalk, where two policemen arrested him. A post mortem examination was held on the body of the deceased, and the physicians testified that the deceased's death was the result of a gunshot wound, which entered the abdomen 2½ inches to the left, and about 1½ inches above the navel. The bullet went straight through the body of the deceased.

On the part of the defendant the evidence discloses that he was 24 years old, and lived with his mother and brother; that he was engaged in business at 1430 Bremen avenue in St. Louis; that he went from his place of business, with his mother and brother on the evening of the homicide, to the residence of the deceased; that he carried a revolver with him because he had the receipts of his day's business, amounting to between $65 and $75 with him at the time; that defendant, his mother, and brother went into the room occupied by the deceased and his wife at the invitation of the deceased, and presented the bill for the sewing; that an argument arose, and the defendant and his mother were ordered out of the place; that the deceased pushed both of them out, took hold of defendant's mother, called her names, and tried to push her over the banisters; that defendant objected, and deceased went into the room and got a knife with a blade about 10 inches long; that defendant then drew his revolver and told the deceased to lay down the knife, which deceased did, and then defendant put up his revolver; that deceased then said he was going to get a policeman, and went out for one; that the defendant in a short time did the same thing; that the deceased came back first, and waited for the defendant at the foot of the stairs leading to deceased's room; that the defendant came back, approached the said stairs, and called to his mother; that the deceased, who...

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  • State v. Warren
    • United States
    • United States State Supreme Court of Missouri
    • November 25, 1930
    ...Mo. 540; State v. Minor, 193 Mo. 597; State v. Silk, 145 Mo. 240; State v. Crabtree, 111 Mo. 136; State v. Gartrell, 171 Mo. 489; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. McKenzie, 177 Mo. 699; State v. Wilson, 98 Mo. 440. (2) The court erred in failing to def......
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    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1946
    ......State v. Robinson, supra; State v. Vansant, supra; State v. Umfried, 76 Mo. 404; State v. Rose, 74 Mo. 213; State v. Creighton, 330 Mo. 1176, 52 S.W. (2d) 560; State v. Gieseke, 209 Mo. l.c. 542, 108 S.W. 525; State v. Sterling, 72 S.W. (2d) 70; State v. Reed, 154 Mo. l.c. 131, 55 S.W. 278. (24) Even if appellant struck first blow or thereafter used excessive force upon deceased any homicide was reduced to manslaughter if he was acting in defense of any of the interests ......
  • State v. Malone
    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1931
    ...been often approved by this court. State v. Robinett, 281 S.W. 29; State v. Little, 228 S.W. 797; State v. Canton, 234 S.W. 799; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. Gamble, 119 Mo. 427; State v. Gartrell, 171 Mo. 489; State v. Griffin, 87 Mo. 608; State v......
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    • United States
    • United States State Supreme Court of Missouri
    • June 5, 1931
    ...... that vile epithets do not justify an assault, is erroneous. The giving of this instruction has been often approved by. this court. State v. Robinett, 281 S.W. 29;. State v. Little, 228 S.W. 797; State v. Canton, 234 S.W. 799; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. Gamble, 119 Mo. 427; State v. Gartrell, 171 Mo. 489; State v. Griffin, 87 Mo. 608; State v. Gordon, 191 Mo. 114; State v. Mills, 272 Mo. 526; State v. Foran, 255 Mo. 213; State v. Fletcher, 195 S.W. 317. If giving this ......
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