State v. Gilmore

• Citation: 95 Mo. 554,8 S.W. 912
• Parties: STATE v. GILMORE.
• Decision Date: 21 May 1888
• Court: United States State Supreme Court of Missouri

8 S.W. 912

95 Mo. 554

STATE v. GILMORE.

Supreme Court of Missouri.

May 21, 1888.

Appeal from St. Louis criminal court; J. C. NORMILE, Judge.

Indictment of one Gilmore for murder in the first degree. Conviction of murder in the second degree, and defendant appeals.

A. W. Alexander and D. Castleman Webb, for appellant. Atty. Gen. A. C. Clover and C. O. Bishop, for respondent.

For opinion of the court, see 8 S. W. Rep. 359.

SHERWOOD, J., (concurring.)

Under some of the former rulings of this court, which are cited in the above dissenting opinion, the iron rule that, if the accused "brought on the difficulty, or voluntarily entered into the same, that then there was no self-defense in the case, and, if death ensued, that then the accused was guilty of murder, no matter what his intention may have been in bringing on the difficulty," etc., was the iron rule which was laid down by this court, — a rule which was unflinchingly applied to every case of homicide which was preceded by a quarrel, however sudden or however great the provocation. This statement is fully borne out by the cases cited in the dissenting opinion, and therefore the statement made therein to the contrary finds no support in those cases. It was the fact that all cases of homicide were treated precisely alike in this particular that induced a minority of this court to question and to combat the monstrously unjust rule in Culler's Case, 82 Mo. 623, and finally induced a majority of this court to overthrow that rule in Partlow's Case, 4 S. W. Rep. 14, in Berkley's Case, Id. 24, and in the present one. In State v. Christian, 66 Mo. 138, the rule is laid down by NORTON, J., with emphasis, that the court should decline "to instruct the jury as to any degree of manslaughter," where "every fact in the case goes to show that the defendant sought and brought on the difficulty." Similar enunciations can be found scattered through our Reports ever since the sound and wholesome principle laid down in State v. Hays, 23 Mo. 287, and State v. Packwood, 26 Mo. 340, was departed from in subsequent cases; where the question of intent in cases of homicide was regarded as wholly immaterial, if the accused "brought on the difficulty." In view of these latter decisions, the statement made in the dissenting opinion, as to the rule of law prevailing in this court in reference to the effects and consequences of bringing on a difficulty, is somewhat singular.