State v. Howard

• Decision Date: 15 December 1890
• Parties: STATE v. HOWARD.
• Court: Missouri Supreme Court

14 S.W. 937

102 Mo. 142

STATE v. HOWARD.

Supreme Court of Missouri.

December 15, 1890.

HOMICIDE — SELF-DEFENSE — IMPEACHMENT OF WITNESS — EVIDENCE.

1. The deceased was in the saloon of the accused, and, on being ordered out by him, went out. The accused went behind the counter, got a pistol, and followed the deceased, and shot him. The accused testified: "I started towards him, and he and his friends backed out of the door. When I got out, I found three or four around me, crowding up close to me. I said, `Keep back.' The deceased turned, and started towards me, and I told him to stop. As he advanced, I shot him. He was 10 to 15 feet from me, and advanced to within 4 or 6 feet. His hand was in a threatening attitude, and I supposed he had a knife in it." The court charged on murder and on self-defense. Held, the failure to instruct on the law of manslaughter was not error.

2. A witness was called to prove threats previously made by the deceased, and was asked if he had not been arrested for stealing. He said he had never been convicted, and, on being pressed, stated that he had been arrested for breach of the peace, and for something else, but for what he could not say. Held, that the error was harmless, there having been no attempt to execute the threats unless it was when the accused was following the deceased with a pistol.

3. Statements in the presence of the accused while under arrest, to which he made no reply, are not admissible against him; but where they tend only to identify the accused as the one who did the shooting, which was admitted by him, their reception is harmless error.

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

C. P. & J. D. Johnson and Silver & Brown, for appellant. Atty. Gen. Wood and A. C. Clover, for the State.

BLACK, J.

The defendant was convicted of murder in the second degree, and sentenced to 20 years' imprisonment, on an indictment for murder in the first degree for killing John Kelly. Instructions were given upon murder in the first and second degrees, and upon self-defense. The errors assigned are a failure of the court to instruct upon manslaughter, and the introduction and exclusion of evidence. Kelly, the deceased, and one Horner, went into the defendant's saloon on the night of the 29th October, 1887. Defendant and Kuehne, and several other persons, were in the saloon at that time. The last-named persons were throwing dice for the drinks. Kuehne, having lost, invited the persons present, including Kelly, to drink, and they accepted the invitation. Defendant then proposed to Kuehne to "shake for the house," to which the latter agreed. This time the defendant lost, and Kelly and others drank again, at his request. Defendant said to Kelly: "You are drunk." To which the latter replied: "I don't have to look far for a partner." Other remarks of a like character were made by and between them when defendant and Kuehne engaged for another game of dice. They asked Kelly to act as referee, but he declined, saying he knew nothing about the game. Defendant lost again, and made the remark that he "guessed he would have to treat." At the same time, he fixed his eyes upon Kelly, and said: "I believe you sons of bitches came in here for trouble." He immediately ordered Kelly out of the house. Kelly walked to the door, and went out. The defendant then stepped behind the counter, got a pistol, pulled off his coat, and followed Kelly, and shot him while both parties were on the sidewalk. The foregoing is, in substance, the evidence of a number of eye-witnesses introduced by the state. The defendant, testifying in his own behalf, in substance, said: "Kelly came in the saloon with his right hand in his pocket. Kuehne asked Kelly to take a drink, and I watched Kelly, because I had been warned that he intended to take my life. I spoke to him in a friendly way, and he said: `You son of a bitch, I got it in for you.' And I then said: `I hear you have. Now, you get out of my house as quick as possible.' I started towards him, and he and his friends backed out of the door. When I got out of the door, I found three or four more around me. I saw these men crowding up close to me, and I said, `Keep back.' Kelly turned, and started towards me, and I told him to stop. As he advanced, I shot him; in other words, the pistol was discharged, and I did not know whether he was shot or not, and the other parties ran. Kelly was 10 or 15 feet from me at first, and advanced to within 4 or 6 feet of me. His hand was in a threatening attitude, and I supposed at the time that he had a knife in his hand. I thought my life was in danger, and that I was going to be attacked either in front or behind." One other witness introduced by the defendant, who was passing at the time, says he saw defendant step from one door to another on the outside; that he heard defendant say "Stop;" that Kelly was then approaching defendant, and defendant shot. The witness says he saw no other persons around, and did not notice that Kelly held his hand in a threatening attitude. There had been some previous difficulty between defendant and Kelly, and Kelly's associates, and there is evidence tending to show that defendant had ordered Kelly to keep away from the saloon. The witness McKenna says he heard Kelly say: "I am going to do the big son of a bitch up," and that a few days before this shooting he informed defendant of what Kelly had said. A Mr. Goodstein testified that some four months...