State v. Grayor

• Decision Date: 21 June 1886
• Citation: 1 S.W. 365,89 Mo. 600
• Parties: The State v. Grayor, Appellant
• Court: Missouri Supreme Court

1 S.W. 365

89 Mo. 600

The State v. Grayor, Appellant

Supreme Court of Missouri

June 21, 1886

Appeal from St. Louis Court of Appeals.

Affirmed.

L Frank Ottofy for appellant.

(1) Where a homicide is committed with an instrument not recognized by the statute as a "deadly weapon" its deadly character must be alleged in the indictment. State v. Hoffman, 78 Mo. 257. (2) It is proper to show the incentive to the provocation which aroused the passions, and it is a question of fact for the jury in a doubtful case whether a party acted under the influence of the passion even though an interval had occurred. 2 Starkie on Evid., * 525; State v. Testerman, 68 Mo. 415; Wharton on Crim. Law [7 Ed.] sec. 990. (3) By "malice aforethought" is meant an intent actually to take the life of the slain, fully formed and existing in the mind of the slayer at some time, however short, before the act of killing was done. State v. Wieners, 66 Mo. 21; State v. Ellis, 74 Mo. 211. (4) It is the duty of the court to declare, as a matter of law, whether the provocation sought to be established is such as will mitigate the homicide. State v. Ellis, 74 Mo. 220. (5) If an assault (misdemeanor) only is intended, with a weapon not in itself dangerous or deadly, and the assailant slay the assailed, there being no intent to kill, it is murder in the second degree, or manslaughter. Wharton on Criminal Law [7 Ed.] secs. 1084-1196, and cases cited; 2 Bishop on Criminal Law, sec. 692; State v. Holme, 54 Mo 162; State v. Wieners, 66 Mo. 21. (6) If a reasonable doubt exists as to the grade of offence, the jury should acquit of the higher and convict of the lower. Wharton on Criminal Law [7 Ed.] sec. 710 and cases cited; The State v. Gonce, 79 Mo. 609. (7) When there are extenuating circumstances, the weapon not being what is denominated in law as a deadly weapon, there must be proof of malice. The State v Alexander, 66 Mo. 159; The State v. Curtis, 70 Mo. 601. (8) When the state's attorney makes a statement of material facts not proved, the same being unwarranted by the evidence and prejudicial to the defendant's cause before the jury, it is a good ground for a reversal. The State v. Vorback, 66 Mo. 167-8; The State v. Kring, 64 Mo. 591.

John C. H. Stevenson also for appellant.

(1) The court erred in giving the instruction as to manslaughter in the third degree. In it was the following language: "By means and use of a dangerous weapon, to-wit, a wooden club." That is a statement by the court that the instrument used in this case was a dangerous weapon, and is error because: (a) Whether or not the weapon used is a dangerous one, is a question of fact to be passed upon by the jury, and not one of law for the court. State v. Nueslein, 25 Mo. 111; State v. Harper, 69 Mo. 425; 1 Wharton on Crim. Law [9 Ed.] 1885, sec. 645d, p. 587; Skidmore v. State, 43 Tex. 93; Shadle v. State, 34 Tex. 572; U. S. v. Small, 2 Curtis C. C., 241, 243. (b) The language of the instruction, "by means and use of a dangerous weapon, to-wit, a wooden club," assumes the existence of two facts, i. e., that the instrument used was a dangerous weapon, and that the instrument used was a wooden club. It misleads the jury, and withdraws from their inquiry material facts. Thompson v. Botts, 8 Mo. 710; Sigerson v. P. & A., 13 Mo. 620. (c) It is a comment upon the evidence. State v. Dunn, 18 Mo. 419; State v. Cushing, 29 Mo. 215. (d) It instructs the jury upon a matter of fact, and is, therefore, error. 1 R. S., Mo. 1879, p. 321, sec. 1920. (e) Whether a weapon was, under the circumstances, dangerous, is a question of fact to be determined by all the circumstances of the case, especially by the mode of use. 1 Wharton on Crim. Law [9 Ed.] 1885, sec. 645d, p. 587, and cases cited. (f) It assumes a contested fact and is, therefore, bad. State v. Wheeler, 79 Mo. 366. (2) A deadly weapon is one likely to produce death or great bodily injury. 2 Bishop on Crim. Law [7 Ed.] sec. 680, p. 381; 1 Wharton on Crim. Law [9 Ed.] sec. 645d, p. 587. Dangerous weapon is a milder term than deadly weapon, yet otherwise of the same meaning. Bishop Stat. Crimes [2 Ed.] sec. 320.

B. G. Boone, Attorney General, for the state.

(1) Evidence of the former difficulty was properly excluded. State v. Ramsey, 82 Mo. 133; People v. Edwards, 41 Cal. 640; State v. Jackson, 12 La. Ann. 679. (2) The instruction which told the jury that abusive and insulting words or degrading epithets applied and addressed by the slain to the slayer, constituted a sufficient cause of provocation to reduce the grade of the crime is erroneous and was not authorized by the facts in this case. Murray v. Boyne, 42 Mo. 172; State v. Griffin, 87 Mo. 608; 2 Bish. Cr. L. [5 Ed.] sec. 40, and cas. cit.; Whar. Cr. L. [4 Ed.] sec. 985; Brasswell v. State, 42 Ga. 613; People v. Turley, 50 Cal. 469; Williams v. State, 3 Heisk. 376. It may be admitted by the state that the instruction as to manslaughter is erroneous, and still defendant has no cause to complain. He was indicted for murder in the first degree, the jury was properly instructed, and found him guilty as charged. Under this state of facts he will not be heard to complain, although an erroneous instruction for a lower grade of homicide was given. State v. Talbott, 73 Mo. 347-353; State v. Smith, 80 Mo. 516-519. (3) The attorneys for the state, in their arguments to the jury, did not misstate the law or the facts and the defendant was not prejudiced and cannot complain. State v. Stark, 72 Mo. 37; State v. Mallon, 75 Mo. 355; State v. Hoffman, 78 Mo. 256; State v. Ramsey, 82 Mo. 133.

OPINION

Black, J.

The defendant was indicted for killing Berry Evans. He was convicted of murder in the first degree. From the evidence for the state it appears the defendant and deceased were employed at livery stables in St. Louis which were under the same management. One stable was situate on the east and the other on the west side of the same street. About eight o'clock on the day of the homicide, the deceased was engaged in front of the east stable hitching a horse to a buggy. The defendant led a pair of horses from the west to, and into, the east stable, and in so doing this passed the deceased. He turned the horses around on the inside of the stable and gave the halter straps to Mr. Benjamin with a request to hold them until he got the harness. Defendant then went into the harness room, which was close at hand, got a stick three or four feet long and two or three inches thick, and with it hit the deceased on the head, then on the body and raised the club to strike the third blow, when bystanders interfered. The first blow rendered the deceased senseless. Defendant testified that as he passed with the horses the deceased said: "Oh, yes, d -- d son-of-a-bitch; I fixed you last night." The evidence of other witnesses tends to show that no such remarks were made. Defendant also testified that he was angry because of the words spoken to him, and because of a previous difficulty between them; that he had no intention to kill Evans, or do more than give him a good lick; that Evans was bending over and raised up as the blow fell, so that it took effect on the head and not on the body, as was intended. On this evidence the court instructed as to murder in the first and second and manslaughter in the third degree.

1. The evidence shows these parties were room mates and that on the morning of the homicide defendant had a fresh scar or wound on the forehead. He also offered to show in connection with this evidence that they quarreled on the previous evening, and that about two o'clock in the night, deceased went into their room and struck him with a whip while asleep, inflicting the wound. This evidence was excluded. In 2 Bishop on Criminal Law, section 711, the author says: "Another consideration applicable in all cases is, that if the passion had time to cool, the killing is not reduced to manslaughter,...