State v. Kelleher
Decision Date | 14 December 1909 |
Citation | 123 S.W. 551 |
Parties | STATE v. KELLEHER. |
Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Danl. D. Fisher, Judge.
Edward Kelleher was convicted of murder in the second degree and he appeals. Reversed and remanded.
See, also, 201 Mo. 614, 100 S. W. 470.
This cause is now pending before this court upon appeal by the defendant from a judgment of conviction of murder in the second degree in the circuit court of the city of St. Louis, Mo. In what was known as Walsh's saloon, located at the northeast corner of Pine and Twenty-Second streets, in the city of St. Louis, between 2 and 3 o'clock Sunday morning, January 29, 1905, defendant, Edward Kelleher, with a pistol, shot and killed Thomas Sullivan, a prize fighter by profession, and known as "St. Louis Tommy Sullivan" in prize-fighting circles. The defendant was charged by indictment with murder in the first degree, for the killing of said Sullivan. The sufficiency of the indictment is not challenged, hence there is no necessity for reproducing it. This is the second appeal of this cause. See State v. Kelleher, 201 Mo. 614, 100 S. W. 470.
The evidence on the part of the state at the second trial tended to show that Herman Sellinger, Mike Morissey, William Taylor, and the defendant, Edward Kelleher, were all standing at the bar in said Walsh's saloon drinking, when Sullivan and the witness, John Howard (now deceased), came into the saloon, and Howard ordered the drinks for himself and deceased, Sullivan; that the defendant was standing near a water cooler at the north end of the bar, which ran north and south in said saloon; the next south of him was a friend of defendant by the name of Sellinger, and at the extreme south end of the bar, next to the partition or swinging door, near the front entrance of said saloon, stood the defendant, Edward Kelleher, and near the bar stood the witness, William Taylor. A man by the name of Gerwitz was the barkeeper. There were only two shots fired, and those by defendant. One bullet went wild and hit the bar, and the other one entered the body of deceased in the right side, just below the ninth rib, in what is know as the axillary line, and ranged forward to the left and downward and came out about one inch to the left side and one-half inch above the umbilicus. Deceased went from said Walsh's saloon to Bumberry's saloon near by, and after remaining there for a few minutes was taken to the city hospital, where an operation was performed on him early that day. Deceased died on the following Friday morning, February 3d, of sceptic peritonitis, due to the pistol shot wound in the abdomen, as above described.
To fully appreciate the nature and character of the testimony it is well to give a brief statement of the testimony of the witnesses as to the main facts developed at the trial of this cause. We have examined in detail the record disclosing the evidence, and by verification find that the learned counsel for appellant, in his brief abstract of the evidence of the various witnesses, substantially states the leading features of the testimony of such witnesses as disclosed by the record.
John Howard was a witness in this cause upon the former trial, and the testimony of Howard was preserved for the purpose of review upon the former appeal. This witness, at the time of the second trial, was dead, and his testimony, which was preserved in the bill of exceptions, was presented to the jury. The main features of his testimony were as follows: Cross-examination:
William Taylor, a witness introduced by the state, in substance testified as follows: ...
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