State v. Goldsby

• Decision Date: 24 November 1908
• Citation: 114 S.W. 500,215 Mo. 48
• Parties: STATE v. GOLDSBY.
• Court: Missouri Supreme Court

114 S.W. 500

215 Mo. 48

STATE v. GOLDSBY.

Supreme Court of Missouri, Division No. 2.

November 24, 1908.

Rehearing Denied December 15, 1908.

1. HOMICIDE (§ 45)—MANSLAUGHTER—PROVOCATION.

Words alone, however insulting or aggravating, are not provocation which will reduce the killing to manslaughter.

2. HOMICIDE (§ 79)—MANSLAUGHTER—DECREES—"MANSLAUGHTER IN FOURTH DEGREE."

Manslaughter in the fourth degree is the involuntary killing of another in the heat of passion, or any homicide which would be manslaughter at common law, and which is not excusable nor justifiable, or is not declared to be manslaughter in some other degree.

3. HOMICIDE (§ 42)—MANSLAUGHTER.

When the killing is intentional, it is generally murder, but, under circumstances of provocation or of mutual combat, it may be reduced to manslaughter.

4. HOMICIDE (§ 45)—MANSLAUGHTER.

A conditional threat will not reduce an intentional killing to manslaughter.

5. HOMICIDE (§ 309)—TRIAL—INSTRUCTIONS—GRADE OF OFFENSE—MANSLAUGHTER.

Where defendant testified that deceased entered his saloon and demanded payment of a

claim, and said with an oath, "If you don't give it to me, I will kill you," and produced a pistol, and that, when defendant asked for a receipt, deceased repeated his demand and threat, and again produced his pistol, whereupon defendant reached for his pistol and commenced shooting, but could not say whether he or deceased fired the first shot, but was sure that he ducked behind the bar when deceased first showed his pistol, the testimony warranted instructions on murder in the second degree and on justifiable homicide, but did not warrant instructions on manslaughter in any degree, and a charge on manslaughter in the fourth degree was properly refused.

6. CRIMINAL LAW (§ 1059)—APPEAL—PRESENTATION OF GROUNDS OF REVIEW—SCOPE AND EFFECT OF EXCEPTION.

An exception on the ground that instructions do not fully state the law of the case should indicate wherein the instructions are deficient in order to be available on appeal.

7. CRIMINAL LAW (§ 825)—TRIAL—INSTRUCTIONS—REQUESTS.

Where the accused desires further instructions, it is his duty to call the court's attention to questions of law on which the court has failed to instruct, and to except at the time if the court fails to give the instructions deemed necessary.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Richard T. Goldsby was convicted of murder in the second degree, and he appeals. Affirmed.

Willis H. Clark, William E. Fish, and Thomas B. Harvey, for appellant. Herbert S. Hadley, Atty. Gen., and N. T. Gentry, Asst. Atty. Gen., for the State.

BURGESS, J.

On May 29, 1907, the grand jury of the city of St. Louis returned an indictment against the defendant, a negro, charging him with murder in the first degree for the shooting and killing of one Oscar Shanklin in said city. Trial was had on the 27th day of June, 1907, and the defendant was convicted of murder in the second degree, his punishment being assessed at 10 years in the penitentiary. Defendant filed motions for a new trial and in arrest of judgment, which were overruled, whereupon he appealed.

The evidence for the state was to the effect that Oscar Shanklin was shot by the defendant on December 11, 1906, at the defendant's saloon, in St. Louis, and died from the wounds inflicted in a short time.

Sam Medlock, a nephew of the deceased, testified for the state that the deceased and defendant, up to about four weeks before the shooting occurred, had been partners in said saloon, but that there was considerable friction between the men over the running of the business, as a result of which the defendant purchased all of Shanklin's interest in the saloon.

The state produced but one eyewitness to the shooting, Robert T. Scott, a negro, bartender in the saloon at the time. He testified that, besides himself, there were in the saloon at the time Tom Smith, William Marshall, deceased, and defendant; that between 8 and 9 o'clock that evening he saw the deceased and defendant standing outside the bar and close to a cigar case which was on top of the bar, and that he saw the deceased writing something on a piece of paper on the top of the cigar case; that about this time William Marshall came into the saloon and began talking to him, Scott, and that Marshall was in the act of leaving when the shooting occurred. Witness did not know what the deceased was writing, but he saw the defendant leave the deceased and walk around behind the bar. With reference to the shooting, Scott testified as follows: "Shanklin was leaning on the cigar case, and I heard him say to Goldsby, `If you don't do'—something. I didn't catch what he said—`I will do'—something. I couldn't hear just what he said. He put his hand in his right-hand coat pocket, and said something to Goldsby, and then that shooting began, and I don't know who began it, it started so quick. I saw Shanklin fall on his back, and I didn't know whether he had a gun or not. He had something in his hand; I saw something shine; he seemed to be grabbing at it, and it was shining; but he fell on his back, and this fellow, Tom Smith, started to run out, and Goldsby said, `Don't any of you leave here; you see he has got a gun in his hand.' I didn't know who was the one that done the shooting. I knew, of course, that Goldsby done some of the shooting, and I knew his man was shot, but I didn't know if he done it at all. I saw Goldsby with a revolver in his hand. I think I saw him fire some shots; I could see that he shot. The shots were all fired in quick succession; I don't suppose there was over four or five, as near as I can get at it. I cannot say that I saw Shanklin fire any." This witness also testified that after Shanklin fell he saw a revolver in the inside pocket of Shanklin's overcoat, the handle being sticking out. He further testified that the day after the shooting he found what appeared to him to be a bullet hole in some woodwork immediately behind where the defendant was standing at the time of the shooting.

Officer Hughes arrived on the scene soon after the shooting took place. The officer took the defendant's revolver away from him, and then went to the deceased, who was lying on the floor, and found a revolver in the left inside pocket of his overcoat. Four chambers of this revolver contained loaded cartridges, and one contained an empty shell. The officer testified that this empty shell had been fired some time before. The defendant's revolver was offered in evidence at the trial, also the revolver taken from the pocket of the deceased; but the empty shell, which the officer testified was old and blue-molded, was not produced at the trial, nor was its absence accounted for by the state. Officer Hughes also testified that Goldsby did not make any statement to him that Shanklin had a weapon in his hand and started to fire before he, Goldsby, began shooting.

Dr. John C. Lebrecht, who held a post mortem examination over the body of the deceased, testified that he found two bullet wounds on the body, one of which was in the left wrist; the other penetrating the abdomen, and passing through the left lobe of the liver. He testified that deceased died of hemorrhage of the liver, as a result of the latter wound.

William Marshall testified for the defendant that he was in the saloon and was just starting to leave when the trouble commenced. He saw Shanklin backing away from the cigar case, and heard him say to Goldsby, "If you don't do it, I will kill you"; that Shanklin had a gun and was making some motions with his hands, and that Goldsby ducked down behind the cigar case, and came up with his gun, shooting; that there were four or five shots fired, but he did not know how many each one fired, or whether Shanklin fired any; that, after the shooting, Goldsby asked that nobody go out, and made the statement that Shanklin had a gun. This witness also testified that the day after the shooting he saw a bullet mark in the back bar, as testified to by witness Scott.

The defendant testified that he and the deceased had been partners in the saloon, and that, on account of their disagreements...