State v. Kelleher

• Decision Date: 05 March 1907
• Citation: 201 Mo. 614,100 S.W. 470
• Parties: STATE v. KELLEHER.
• Court: Missouri Supreme Court

100 S.W. 470

201 Mo. 614

STATE v. KELLEHER.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. CRIMINAL LAW — TRIAL — REMARKS OF COUNSEL—FAILURE OF ACCUSED TO TESTIFY.

Rev. St. 1899, § 2638, provides that, if an accused shall not avail himself of his right to testify, it shall not be referred to by any attorney in the case. On a prosecution for murder, the state's attorney, in arguing on the admissibility of certain testimony, stated that defendant "must testify" to certain facts. On objection to the remark the state's attorney withdrew it. The court admonished the jury to pay no attention to it, and the state's attorney then stated that such facts were what defendant would have to testify to if he testified. Held that, though the state's attorney was not rebuked, there was no error.

2. HOMICIDE — INSTRUCTIONS — SELF-DEFENSE —MANSLAUGHTER.

Where, on a prosecution for murder, the evidence showed that defendant provoked a difficulty, and then used a deadly weapon, a requested instruction on imperfect self-defense, to the effect that, if defendant applied a vulgar epithet and deceased attempted to draw a deadly weapon, defendant's right to defend himself was only partially lost, and the killing was merely manslaughter in the fourth degree, was properly refused.

3. SAME.

A requested instruction that if defendant applied to deceased a vulgar epithet, and, without further provocation by the defendant, the deceased acted in a manner that caused the defendant to believe that the deceased was about to strike him or commit an assault upon him, and that as a result of such action on the part of the deceased, and in view of all the surroundings and circumstances, the defendant, in hot blood and passion caused by such conduct on the part of the deceased, drew his weapon and killed the deceased, then such killing would constitute manslaughter in the fourth degree, was properly refused.

4. CRIMINAL LAW—EVIDENCE—RES GESTÆ.

Where deceased was shot in one saloon and fled to another, and between two and three minutes after his arrival at the latter made statements to officers as to the shooting, they were not admissible as res gestæ.

5. HOMICIDE—EVIDENCE—THREATS.

Where, on a prosecution for murder, the evidence was conflicting as to whether deceased or defendant was the aggressor, it was error to exclude uncommunicated threats.

6. CRIMINAL LAW—EVIDENCE—DECLARATIONS BY DECEASED.

On a prosecution for murder, it was error to admit evidence of statements made by deceased in the presence of defendant, who was then under arrest for the crime.

7. HOMICIDE—DYING DECLARATIONS.

In order to render a declaration admissible as a dying declaration, it must be made under a sense of impending dissolution, and after a hope of recovery has been entirely abandoned.

8. SAME.

Where deceased stated just before a declaration as to the shooting that it was "all off with him," and that he was a "dead one," and asked for a priest, the declaration was admissible as a dying declaration.

9. WITNESSES — CRIMINAL LAW — EVIDENCE —CHARACTER OF DEFENDANT.

On a prosecution for murder, it was error to permit the state to draw from defendant's witness on cross-examination the fact that he and defendant had been convicted of a felony under a joint indictment; defendant not having put his character in issue or testified in his own behalf.

10. HOMICIDE—DYING DECLARATIONS.

Statements in a dying declaration as to declarations made by deceased after he was shot by defendant were inadmissible.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Edward Kelleher was convicted of murder in the second degree, and he appeals. Reversed.

Thos. B. Harvey, for appellant. The Attorney General and Rush C. Lake, for the State.

BURGESS, J.

Defendant was convicted in the circuit court of the city of St. Louis of murder in the second degree, and his punishment fixed at 25 years' imprisonment in the penitentiary, under an indictment preferred against him by the grand jury of said city charging him with murder in the first degree, in having at said city on the 29th day of January, 1905, shot with a pistol one Thomas Sullivan, from the effects of which said shot said Sullivan, at said city, to wit, on the 2d day of February, 1905, died. Defendant appeals.

The shooting occurred at Walsh's saloon, at the northeast corner of Twenty-Second and Pine streets, in said city, between 2 and 3 o'clock in the morning. The defendant was at the time one of Walsh's bartenders, but was not then on duty. He and some of his associates, however, were standing at the bar. The deceased was a prize fighter.

The evidence on the part of the state tended to show that Sullivan, the deceased, was standing near a filter at the north end of the bar, which ran north and south; that next south of him was a friend of defendant's by the name of Sellinger, and at the extreme south end of the bar, next a partition caused by swinging doors, near the corner entrance to the saloon, stood the defendant, Edward Kelleher; and that north of the bar stood Buck Taylor. The other persons in the saloon were the barkeeper, Gerwitz, and two or three who were standing near the west side of the room. John Howard, a witness for the state, testified as follows: "Sullivan and I walked into the saloon. We walked to the bar, passed Kelleher and Sellinger, and I stepped behind. Sellinger and Sullivan went back of me, near the filter; walked to the bar; and I said to the bartender, `Give me a little booze. What do you want, Tommy?' He says, `I want the same.' So he gave us water on the side, and I told him that I wanted soda. So he gave me the soda, and I poured out my whisky, and drank the whisky, like that [illustrating], reaching for my soda to drink it, and had it to my lips like that, and was standing like that at the bar [stands up and illustrates], and I saw, when I turned around, after having it like that, to say, `Here is luck,' I saw Kelleher standing there. He said to Sullivan, he says `You [applying a vile epithet], you are a fighter?' He says, `This ain't no place to come looking for trouble.' And, as he did, why, Sullivan jumped back like that [illustrating], and Kelleher—I don't know where he pulled the revolver from, or where he got it from, but I saw the gleam of the revolver like that, like you would throw a piece of paper or anything through the air; but I heard a shot, and I started to run. Then I heard another shot. I run out the front door. Q. Did you notice whether or not Kelleher had that gun in his hand at the time you turned around when you first noticed him? A. I couldn't say whether he did or not. Q. Did you afterwards see the gun in his hands? A. I saw the gun when he pulled it. Q. When he was drawing it down, you saw it for the first time? A. Yes, sir. When he came up to him, he came up to him like I walk up to you, saying, `You are a fighter; you come in here looking for trouble.' Q. What kind of a gun was it? A. I couldn't say. Q. Was it nickel-plated? A. No; looked like a black gun to me. Q. Looked like one of these blue steel guns? A. Yes, sir; looked like a black gun. Q. Which way did you run? I run out of the front door. Q. The door you came in? A. Yes, sir. Q. You came in the front door, as I understand, and passed through these doors here in the partition? A. Yes, sir. Q. What kind of doors? A. There is glass in them. They are swinging doors. Q. Swinging doors? A. Yes, sir. Q. What did Sullivan do? A. I couldn't say. I didn't wait to see. I ran. Q. Well, did you see him turn, or did he turn and run while you were there? A. I didn't wait to see. Q. You didn't wait to see? A. No, sir. As soon as he reached back, I turned. I saw the flash of the gun, and saw the flash of the shot, and run. Q. How soon after Kelleher addressed him before these shots rang out? A. Well, I couldn't say the limitation of time. Q. You were there, you were a witness to it? A. Yes, sir. Q. You turned and saw Kelleher? A. Yes, sir. Q. What occurred then? Just tell how fast this thing took place. A. I don't know the exact time. All I know here you can judge for yourself. That Sullivan jumped back, and then I saw the flash of the revolver, like pulling it from your pocket, like that [illustrating], and then a shot, and I turned to run and I heard another shot, and I ran out the front door. Q. Do you know whether Sullivan had a gun or not? A. I couldn't say."

Two days after the shooting, and while the deceased was lying in the hospital, he made an ante mortem statement, which was taken down in shorthand, transcribed, signed by the deceased, and witnessed. The ante mortem statement is as follows: "Q. State your name. A. Thomas J. Sullivan. Q. You are known as `St. Louis Tommy Sullivan?' A. Yes, sir. Q. You know you are dangerously injured and liable to die? A. Yes, sir. Q. How old are you, Tommy? A. 24. Q. Where were you born? A. St. Louis. Q. Where do you reside? A. 3456 Lindell Boulevard. (Last two questions and answers objected to as irrelevant and immaterial, and not a part of the fatal occurrence, which objection is by the court overruled, to which ruling of the court the defendant, by counsel, duly excepted then and there at the time). Q. Now, we want a correct statement of what took place at Walsh's saloon, 2131 Pine street, Sunday morning, the 29th inst., and we want the name of those who were present when the shooting occurred. What time did you go into the saloon? A. About 3 o'clock in the morning. Q. Who was with you? A. Johnnie Howard. Q. He went with you in the saloon? A. About 3 o'clock in the morning. Q. Who was with you? A. Johnnie Howard. Q. He went with you in the saloon? A. Yes; we went in together. Q. Was anybody else with you? A. No, sir. Q. Where did you meet Johnnie Howard? A. Twenty-First and Chestnut streets. Q. Where did you go then? A. We went to Joe Daneri's, Twenty-Second and Chestnut streets. Q. How long did you stay in Daneri's? A. About three-quarters...