State v. Holloway

• Decision Date: 12 March 1901
• Citation: 161 Mo. 135,61 S.W. 600
• Parties: STATE v. HOLLOWAY.
• Court: Missouri Supreme Court

61 S.W. 600

161 Mo. 135

STATE v. HOLLOWAY.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

HOMICIDE — SELF-DEFENSE — ERRONEOUS INSTRUCTIONS — SUFFICIENCY OF EVIDENCE.

1. A number of witnesses for the state testified that defendant, who was in his own house, invited deceased to fight, and while the latter was attempting to take off his coat the defendant drew a revolver, and shot him. None of the witnesses saw any weapon in the possession of deceased. Defendant testified that deceased had a razor, and was pursuing him during the entire shooting, and cut him on the hand, but other witnesses testified that deceased was never near enough to cut defendant. Deceased was shot in the back, and an examination of his person failed to show a razor, and he denied having one. The mother and sister of defendant testified that deceased admitted that he was to blame, and they also testified that defendant's hand was cut, but officers who examined his hand on the succeeding day found no wound. Defendant was shown to have a bad reputation. Held to sustain a conviction for murder in the second degree.

2. Where deceased is shot in the back, and all the witnesses present at the time except defendant testify that deceased was not attacking defendant when the fatal shot was fired, and no wounds are found on defendant's person, an erroneous instruction on self-defense is not reversible error, though defendant, whose reputation was impeached, testified that the shot was fired in self-defense.

3. An erroneous instruction on murder in the first degree will not be considered on an appeal from a conviction for murder in the second degree.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Floyd Holloway was convicted of murder in the second degree, and he appeals. Affirmed.

Matthews & Shackelford, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, J.

Some negroes had a dance in St. Louis county, about a mile and a half from Ellisville, on the Clarkson road, on the night of the 30th day of December, 1899, at the house of Matilda Stafford, mother of defendant. The dance ceased about 6 o'clock next morning, and on its discontinuance trouble began between defendant and Austin Watts, in the kitchen, about another glass of wine, which defendant, the master of ceremonies, refused to let him have. Thereupon quarreling began between them, which resulted in Watts, who was evidently at the time trying to get away from defendant, being shot in the back by the fourth shot fired, whereupon he sank to the floor, and died in a few days thereafter, his spinal marrow being nearly severed by the bullet. Watts, at the time he was shot, was going out of the kitchen. He was going towards the east kitchen door. He was "moving pretty swift." He had left the middle of the kitchen, and was trying to get away. He almost fell in the door. Being raised up, at his request, by two of those present, he was seated in a chair, when he said to those who assisted him: "I want you boys to search me, and say if I have got a razor. Holloway claimed I was after him with a razor." He then said to Massey and Herman, "There is an iron handled knife in my right-hand pocket." Thereupon they searched Watts, and found no razor on him, and only a little pocketknife, which was closed, and which Watts gave to Herman to keep till he called for it. Dr. Neitert testified that the bullet "entered the back [of Watts] about on a level with the eleventh dorsal vertebra, a little to the left of the median line"; and he stated further that the bullet penetrated the spinal vertebra, and almost severed the spinal cord, resulting in paralysis and death.

As a sample of the testimony given on behalf of the state, Lawrence testified, in substance, the following: "I know the defendant, Floyd Holloway. I knew Austin Watts in his lifetime. Have known Holloway six years. I have lived in that neighborhood for the last six years. Floyd was living at the Stafford House on the 31st of December last. I was there on that day, and in the kitchen at the time the trouble started. It was between seven and eight o'clock in the morning, as near as I can get at it. We were having a little dance there. Floyd had left word at my house that he was going to have a watch raffled, and asked me and my wife to come over, and we went over there; and there was not enough come, and he didn't have it, and so we had a dance instead. Austin Watts and Will Booth furnished the music. The dance broke up about half past five o'clock. Just before this difficulty occurred, Floyd was in the other room somewhere. He was not in the room where I was. Joe Massey, John Stafford, Jim Herman, and myself was in the kitchen, talking about school days. There had been no trouble between any of us that I knew of. Directly Floyd, the defendant, came into the kitchen. Austin says, `I don't want to fight.' I thought they was playing. But Austin says, `I don't want to fight. I would not raise my hand to hit you in here at all.' Floyd says, `I guess you must be looking for something.' And he says, `Yes, I want a drink of wine.' And Floyd says, `I just awhile ago gave you a drink. Do you want it all?' Austin says, `No, I don't want it all All I want is a drink of wine.' And Floyd says, `I won't give you the wine.' Austin says, `That's all right. I don't want to have any fuss. If you come down here for a fuss, you can go back upstairs.' Floyd says, `You make me go back upstairs.' Austin says, `No, you can stay in your own house. If you want to fight, I will meet you somewhere, and fight it out.' Then Floyd says, `You black son of a bitch, if you can fight it out somewhere else, fight it out here;' and Austin went to pull his coat off, and Floyd put his hand in his pocket, and I went for the door. Floyd says, `You black son of a bitch, if you can fight it out some place else, you can fight it out here.' Austin didn't say anything, but pulled his coat off. Joe Stafford run and grabbed Floyd, and I saw the pistol coming out of Floyd's pocket, and I fell on my hands and opened the door, and as the door opened the gun said `t — o — o,' and a bullet struck over me. I heard five reports. I didn't see anything in Austin's hand when he took his coat off. I didn't see him get out of his coat though, for when I looked back last he had his coat this way (illustrating), just as I was going for the door. Stafford had hold of Floyd. I saw no cuts or bruises on Floyd's hand or face." Stafford, defendant's stepfather, who was present in the kitchen when the shots were fired, and who, with another, tried to separate the combatants, testified he saw no blood on defendant after the shooting was over. Massey, who was present in the kitchen when the shooting occurred, testified he did not see any marks of cutting on defendant at the time, but saw he had his hand tied up, but didn't see any marks. Herman testified that when defendant fired the first shot Watts was about 15 feet away from him, and that during the tussle Watts did not get close enough to defendant to cut him with a razor or knife, and that witness did not see Watts have any kind of weapon during the scuffle; and no witness testifies that he saw Watts with any weapon during that time except defendant. Booth testified that defendant was getting ready to shoot as Watts was pulling off his coat; that Watts, during the struggle, was not nearer defendant than six feet; and that he saw no cuts on defendant. Hamm testified that defendant said to Watts, "You can fight as good here as outside," and that as Watts was pulling off his coat, and started towards defendant, the latter pulled his pistol, and began to fire; and that witness did not notice any blood on defendant's hands or head. Defendant went to the county jail and surrendered himself on the 1st of January, 1900, and Kerth, the sheriff and keeper of the jail, testified that there was nothing the matter with defendant's finger at that time, nor did he have it tied up. Albert Autenrieth testified that "defendant, Floyd Holloway, came to Clayton on the day after the shooting, and gave himself up. His forefinger was not bandaged. He said that he had gotten into some difficulty, and a man had struck him with a razor, and had cut him on the hand, and I said, `Floyd, I don't see any cut,' and he said, `He hit me with a razor, and that is the reason I shot him.'" Heiss, Hock, and Schumacher all testified as to defendant's bad reputation.

On his own behalf, defendant testified substantially as follows: "I live at Ellisville, St. Louis county, Missouri, with my mother, ...