State v. Kretschmar

• Decision Date: 13 December 1910
• Citation: 232 Mo. 29,133 S.W. 16
• Parties: STATE v. KRETSCHMAR.
• Court: Missouri Supreme Court

133 S.W. 16

232 Mo. 29

STATE v. KRETSCHMAR.

Supreme Court of Missouri, Division No. 2.

December 13, 1910.

Rehearing Denied December 27, 1910.

1. HOMICIDE (§ 158) — EVIDENCE — THREATS BY ACCUSED — ADMISSIBILITY.

In a prosecution for murder, it appeared that accused and deceased had been in business together, and that, as a condition precedent to furnishing more money for the business, the deceased demanded to have the controlling interest. At that time the accused stated that deceased wanted to hog the proposition if it became profitable, and that he would kill anybody who went back on him, etc. On the day of the homicide, the accused stated. "He has put me out, and he will put you out." Held, that these threats were competent within the rule that, when a threat is conditional on the doing of an act which the deceased has performed shortly previous to the homicide, the intervening time is of little importance, and were so intimately connected with the circumstances leading up to the homicide as to make the threats competent.

2. HOMICIDE (§ 158) — EVIDENCE — THREATS BY ACCUSED — ADMISSIBILITY — REMOTENESS.

In a prosecution for a homicide, the intervening time between threats made by defendant and the homicide does not affect their competency, for remoteness goes to the credibility, and not to the competency, of such evidence.

3. HOMICIDE (§ 112) — EXCUSABLE HOMICIDE — AGGRESSION — RIGHT OF IMPERFECT SELF-DEFENSE.

Where the defendant at the commencement of the difficulty is the wrongdoer or aggressor, he has only the right of imperfect self-defense, and, if he kills his adversary to save his own life, the homicide is manslaughter, not excusable homicide.

4. HOMICIDE (§ 300) — TRIAL — JURY QUESTION — ISSUES — SELF-DEFENSE — INSTRUCTIONS.

For self-defense to be an issue in a prosecution for homicide, it must be based on testimony, and the same is true of the right of imperfect self-defense. Therefore, where there was no evidence that the defendant sought or invited the difficulty with an unlawful intent less than felonious intent, an instruction which did not submit right of imperfect self-defense to the jury was proper.

5. CRIMINAL LAW (§ 1038) — APPEAL AND ERROR — PRESENTATION OF GROUNDS IN LOWER COURT.

Where defendant in a homicide case failed to object that an instruction failed to present the right of imperfect self-defense and made his objection for the first time in the motion for new trial, it was too late to obtain a review on appeal.

6. HOMICIDE (§ 308) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In a prosecution for homicide, it appeared that accused and deceased were in business together, and that, when additional capital was needed, deceased made it a condition precedent to furnishing any money that he be given control. At that time defendant said that deceased wanted to hog the whole thing if it became profitable, and that, if deceased went back on him, he would kill him. Some months before the homicide, the defendant came into possession of letters by deceased which he considered reflected on his business integrity; but he failed to make this matter known until he was put out of the business. A few days before the homicide, the deceased demanded that the defendant either pay him for his stock or return it, and the defendant returned it, and was dismissed from the business. On the day of the homicide, he visited the deceased's place of business armed with a revolver and brought the letters before mentioned. He managed to see the deceased alone. He testified that, in the interview before the killing, he demanded a letter of retraction or disclaimer, threatened to injure the deceased in a business way, talked angrily at the table, etc. Held that, under these facts, an instruction, which submitted to the jury the issue that the defendant with the felonious intent of taking the life of deceased, etc., voluntarily sought the difficulty, was proper.

7. HOMICIDE (§ 160) — EVIDENCE — ADMISSIBILITY.

In a prosecution for homicide, it is competent for the defendant to explain why he was carrying the deadly weapon with which he did the killing.

8. HOMICIDE (§ 339) — APPEAL AND ERROR — REVIEW — HARMLESS ERROR — EXCLUSION OF COMPETENT EVIDENCE.

In a prosecution for homicide, the defendant was allowed to explain his reasons for carrying weapons for the last 10 years, and, in fact, was allowed to answer the direct question, "Why did you carry the pistol?" A later question upon the same subject was excluded. Held harmless error; defendant having had ample opportunity for explanation.

9. HOMICIDE (§ 338) — HARMLESS ERROR.

In a prosecution for homicide, the business relations between accused and the deceased had come in issue, and it was shown that the deceased had discharged accused, and the state was allowed to show the reasons for this discharge. Held harmless error where they did not reflect on the defendant's moral character.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Herman A. Kretschmar was convicted of murder in the second degree, and appeals. Affirmed.

C. Orrick Bishop and Chas. P. Johnson (Thos. B. Harvey, of counsel), for appellant. E. W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for the State.

KENNISH, J.

On the 18th day of February, 1909, the grand jury for the city of St. Louis returned an indictment charging Herman A. Kretschmar, the appellant herein, with murder in the first degree for the killing, with a pistol, of Clarence N. Jones, on the 3d day of February, 1909. Appellant was thereafter tried, found guilty of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of 18 years. Timely motions for a new trial and in arrest having been duly filed and by the court overruled, appellant brings the cause to this court by appeal, and assigns error.

The material facts of this cause, as disclosed by the evidence for the state, are about as follows: The Commonwealth Feed Mills Company is a corporation with its office and place of business located at the corner of North Second street and De Soto avenue in the city of St. Louis. For about 1½ years prior to the 12th day of January, 1909, appellant had been the nominal secretary of the mill company, yet his real and active duties took him out most of the time as a traveling salesman for the feed products of the mill. On the last-named date appellant surrendered all of his stock and resigned as secretary of said mill company, as requested by its board of directors. He continued his services as salesman until the 1st day of February, 1909, after which time he had no further connection with the company. On the 3d day of February, 1909, the day of the fatal tragedy, the deceased, Clarence N. Jones, was the president of the mill company and was the owner of 51 shares of its stock, which was a controlling interest. Edwin Gloor was its vice president and treasurer, and Drummond Jones, a son of deceased, was its secretary. In the latter part of the month of October, or the early part of November, 1907, the mill company was in great financial distress. Mr. Jones was then living at his summer home at Arcadia, this state, and owned 25 shares of the stock of said mill company; Gloor owned 40 shares; and appellant 35 shares. It appears that appellant had bought what stock he then owned from the deceased, and Gloor, severally, and that he had given to each of said parties his note for the purchase price of the stock so purchased. Gloor and appellant made a trip or two to Arcadia to see deceased about putting more money in the business. This Mr. Jones declined to do unless he owned a controlling interest in the stock of the company. After some delay Mr. Jones was sold enough stock by Gloor and appellant to give him 51 shares, as he had requested, and he then furnished the money needed by the company. Appellant and Gloor each continued to own a portion of the stock. It appears in the record that appellant had failed to pay deceased or Gloor for a single share of the stock which they had sold him, and some time during November or December, 1908, appellant was notified by deceased that he must pay for the shares he then owned and had purchased from deceased or return them and take up his note, which he had given in payment therefor. At the time appellant ceased to be a stockholder and tendered his resignation as secretary (January 12, 1909), the mill company owed deceased more money than the entire value of the capital stock of the corporation. Appellant's employment with the company as secretary and salesman began in the month of August, 1907, and soon thereafter he made a contract for the company with Edmund E. Delph of Philadelphia, Pa., by the terms of which Delph was to act as distributing agent for the product of the mill in that state and the surrounding district. At first many orders were received by the company from Mr. Delph, but the business began falling off, and on March 11, 1908, and again on the 17th day of the same month, the deceased wrote to Mr. Delph, and in each letter complained that orders were not coming in from his agency as formerly, and asked for an explanation. The deceased referred in the letters to the representations made to him by appellant and Gloor as to the amount of business which could be expected from that agency and of his consequent disappointment over the results. Appellant learned of these letters, and obtaining the originals from Mr. Delph in October, 1908, made two copies of each. He seems to have considered the references to him in the letters as a reflection upon his character as a business man. The deceased had also written a letter to a man named Dula in New York City, which was not offered in evidence, but of which appellant had heard and took exceptions to as also reflecting upon him. When it became necessary to secure additional funds to continue the business of the company in the fall of 1907, appellant was greatly...