State v. Lane

• Citation: 158 Mo. 572,59 S.W. 965
• Parties: STATE v. LANE.
• Decision Date: 27 November 1900
• Court: United States State Supreme Court of Missouri

59 S.W. 965

158 Mo. 572

STATE v. LANE.

Supreme Court of Missouri, Division No. 2.

November 27, 1900.

HOMICIDE — EVIDENCE — LACK OF SURGICAL CARE AS DEFENSE — MANSLAUGHTER — HEAT OF PASSION — INTENT — OFFICER — USE OF UNNECESSARY FORCE.

1. Where, in a prosecution for homicide, there was evidence that accused had drawn his pistol and struck deceased with it, and the post mortem developed that deceased's wound had been made with a small, pointed instrument, testimony that the pistol which accused usually carried had a small catch, which projected a quarter of an inch from the pistol, was competent, as tending to explain how the wound was made.

2. It is no defense to a prosecution for homicide that proper surgical treatment might have saved deceased's life; there being no maltreatment of the wound, or misconduct of deceased with reference thereto.

3. A charge that if accused intentionally and feloniously struck deceased with a dangerous weapon, in the heat of passion, without design to effect his death, so that he died, he was guilty of manslaughter in the third degree, unless the killing was justifiable, correctly defined manslaughter in the third degree.

4. Accused was not injured by a failure to define "heat of passion"; the term evidently being used in its ordinary, and not its technical, sense, and being favorable to accused.

5. Where the evidence showed that accused in a sudden passion struck deceased over the head with a pistol, the question whether the blow was with intent to kill was properly submitted to the jury; the indication, from his striking him instead of shooting him, being that he had no design of killing him.

6. Accused was not convicted of a homicide until four years after its commission, one jury having disagreed. No application was made for a change of venue for prejudice of the inhabitants. There was no showing that he was rushed into trial without opportunity to prepare his defense. Held, that the verdict was not shown to be the result of passion or prejudice.

7. Deceased, whom accused, an officer, was attempting to place in custody, was drunk and disarmed. Accused was a more powerful man than deceased, and had an assistant. Deceased struck at him, and he knocked the blow off with his hand; and, deceased attempting to break loose, he struck him on the head with his pistol, and dragged him into a cell. Deceased had not attempted to escape while en route to the jail, and accused had not called on his assistant for help. Held, that it could not be said, as a matter of law, that accused did not use excessive and unnecessary force to compel obedience to his authority, but the question was for the jury.

Appeal from circuit court, Dunklin county; J. L. Fort, Judge.

Samuel Lane was convicted of manslaughter in the third degree, and appeals. Affirmed.

Ralph Wammack, J. L. Downing, and J. T. McKay, for appellant. The Attorney General and Sam B. Jeffries, for the State.

GANTT, P. J.

At the January adjourned term, 1896, of the circuit court of Dunklin county, the defendant, Samuel Lane, was indicted and charged with the murder of James McGregor on November 20, 1895. On various grounds the cause was continued until the January term, 1898, at which term it was tried, with the result of a hung jury. At the October term, 1898, the cause was again tried, and resulted in a conviction of manslaughter in the third degree, and his punishment fixed at three years in the state penitentiary, from which he has taken this apppeal.

At the time of the commission of the act the defendant was night marshal of the town of Malden, Dunklin county, Mo. On the 20th of November, 1895, the deceased became drunk and disorderly, and had upon his person a pistol. About half past 11 o'clock on the night of November 20, 1895, the deceased was in a saloon run by a man by the name of Paxton. The defendant, in company with two or three other persons, went into the saloon, and intended to pass from there into a room occupied as a restaurant, to get some oysters. When he got in the saloon he saw the deceased, who was behaving in a disorderly manner. He told him to consider himself under arrest, and asked him to give him the revolver which he had on his person. Deceased refused to do so. Defendant then took hold of deceased, threw him upon the floor, and took the revolver away from him. He then asked a man by the name of A. E. Bohlck to assist him in putting the deceased in the city jail. They took the deceased to the door of the jail, but he refused to go in. Bohlck details the occurrence at the prison door as follows: "Finally Lane handed me the lamp and started to get hold of McGregor, but McGregor would not let him get hold of him, and they scuffled around in the room some little; but finally Lane pulled out his pistol, and McGregor remarked to him, `Kill me, if you want to,' and still refused, and tried to break loose, when Lane hit him with the pistol. He struck him on the side of the head. When he struck him he knocked him down, and we had to drag him in. Lane then closed the door of the calaboose, and went off and left him there. Lane did not ask me to assist him in putting him in the calaboose. I was there holding the lamp all the time. Lane is a much larger and stronger man than deceased was, and deceased had no weapon of any kind in his hands that was visible to me, for just before that time Lane had disarmed him. McGregor was drunk, — pretty well intoxicated." McGregor died about two weeks after he was struck. Dr. Shivers testified that he had not attended McGregor immediately before his death, but assisted in the post mortem examination. He testified as follows: "We found on the left side of the head, in front, a wound which had just about healed up, — a very small opening in the skull. It had united. After removing that we found a small depression in his skull. It was hardly a quarter of an inch in diameter. And then, in removing the skull, we found the coverings of the brain inflamed, — the blood vessels enlarged. The inner portion of the skull was a little larger, — probably between an inch and a quarter wide and an inch long. It was broken off, as though bearing down on the brain. The other end was still attached, — only being loose at one end, producing an impression on the brain. When we cut the membranes of the brain we found an abscess. This wound or abscess had been caused by a blow, evidently of some pointed instrument. Something struck him there and knocked the hole in his skull, and produced the pressure on the brain, and there was an inflammation followed, which resulted in suppuration, and that caused death. I think he died on the 3d day of December, 1895. The post mortem was on the 4th or 5th." On cross-examination this witness said that: He never attended the deceased prior to his death. He saw him after he was hurt; that is, saw him come in the post office when he was up, going around with a handkerchief around his head. "It was about two weeks from the time he was hurt until he died. That particular point in the skull that was injured was on the left side, over the frontal bone. The skull at that place was tolerably thick. The wound looked to have been probably an inch and a half long. It had all grown up, except a small place, and was hardly a quarter of an inch long at that time. I do not know how the deceased received the wound. It is possible that inflammation of the brain might have been caused from some other source, but it is evident it was caused by this pressure on the brain at the wounded place. It would have taken a right hard lick to break the skull at this place, had it not been for some sharp point used. With some small point striking the skull there, it would not take a hard lick. If proper operation had been performed within a few days after the injury, the life of the deceased could easily have been saved. The blow was not necessarily fatal, but the injury inflicted by it caused the death of deceased." Dr. A. S. Harrison, the coroner, testified substantially to the same effect as Dr. Shivers; and Dr. Nix, for the defendant, confirmed their testimony as to the nature of the wound and cause of death. J. H. Bledsoe, witness for the state, testified as follows: "I know the defendant, Sam Lane, and knew him in 1895. I was then city marshal of Malden. Mr. Lane was at that time night watchman. He carried a Colt's pistol. That is a medium sized pistol, probably 41. It had on the left side of the muzzle a small, pointed catch, used in throwing the cylinder to get the cartridge out. It projects probably a quarter of an inch from the pistol. I remember the night that McGregor was hurt. Mr. Lane came to my house. He came to my house after it happened, and told me about it, and I got up and went to the calaboose with him. He said he had had some trouble with McGregor that night, and wanted to go up to the calaboose to see him. He said he had put him in the calaboose, and had to hit him, and `I want you to go and see him.' I don't think he told me what he hit him with. When I got there I found McGregor sitting on the floor. He was bloody, and there seemed to be a little cut place on the left side of the head, probably a quarter of an inch long, maybe longer. It had stopped bleeding at the time I saw it." For the defendant, the evidence corroborated that of the state, to the effect that McGregor was drunk on the night he was struck, and had a pistol; that the defendant had to disarm him by force, and, having done so, took him to the prison; that he was admonished that he would be arrested, and replied that Lane, Bledsoe, and the whole push could not arrest him; that the marshal was notified that deceased was on a drunk and armed. Defendant, in his own behalf, testified: "I have lived in Malden 12 years last July. About the 20th of November, 1895, I was night marshal, and it was part of my duty to make arrests of offenders who violated the law. I saw James McGregor there that night. ...