State v. LeWis

• Decision Date: 26 June 1883
• Citation: 14 Mo.App. 191
• Parties: STATE OF MISSOURI, Respondent, v. MATHEW LEWIS, Appellant.
• Court: Missouri Court of Appeals

14 Mo.App. 191

STATE OF MISSOURI, Respondent,

v.MATHEW LEWIS, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 26, 1883.

APPEAL from the St. Louis Criminal Court, LAUGHLIN, J.

Affirmed.

C. O. BisHOP, for the appellant; Deliberation can not be presumed, but must be proved.-- Murray v. The Commonwealth, 79 Pa. St. 311. As to the test of sufficiency of provocation.--See 2 Bishop Cr. L., sect. 710; The State v. Will, 1 Dev. & Bat. 167-169. The instruction defining murder in the first degree is fatally erroneous.-- The State v. Peyton, 12 Mo. App. 568; The State v. Rose, 12 Mo. App. 567; The State v. Ellis, 74 Mo. 207; The State v. Kotovsky, 74 Mo. 247.

JOSEPH R. HARRIS, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

Defendant was convicted of murder in the first degree, for killing his wife, Mary Ann Lewis, in St. Louis, on the 13th of October, 1876.

The defence was an alibi; in support of which, several witnesses were examined. The entire testimony has been read with care. The defendant's case was a very weak one. Though six years and a half from the date of the homicide had elapsed before the trial, and many persons who would otherwise have been summoned for the state as present at the time of the occurrence, were dead or gone to parts unknown, the testimony for the state was overwhelming, that defendant was the man who committed the homicide.

It appears from the testimony that the deceased and the defendant were persons of color, and husband and wife. The deceased was a young woman of twenty-two, of slight frame; the defendant, a heavy built man of middle age. The deceased was employed during the day as house-servant in a house of prostitution inhabited by white women. The defendant frequently before the homicide, and on the morning of that day, and on the day before, told his wife that he would kill her. He told other persons that he would cut her throat; and especially on the morning of the homicide told a negro associate, who remonstrated with him for his cruelty to his wife, that he had made up his mind, and that he would cut her throat before nightfall. The wife slept at nights with her sister in a tenement house in a room occupied by her sister, also occupied by a colored man and his wife. The night before the homicide, the defendant assaulted his wife in bed with a knife. During the morning of the homicide he sharpened and exhibited two knives with which he said he would cut her throat. About dusk on the evening of Friday, October 13th, before the street lamps were lit, but after the lights were lit in the neighboring stores, defendant, who was loitering in front of the passage-way which led from the street to the room in the tenement building where his wife slept at night, saw her coming down the street with a pitcher in her hand. He walked towards her, the handle of his knife sticking out of his pocket, and as he approached her, a colored man, whom they both knew, spoke to her. She returned the salutation of this colored man, and held out her hand to him. Defendant came up and said: “I thought I had told you not to speak to your sons of bitches,” and struck her a blow with his fist, behind the ear, which caused the blood to spurt from her face. She fell upon her knees, and said: “Mat, is it any harm to speak to people?” He ordered her to go into the house. She said that the white people had sent her for beer. He told her to go and get it and come back. She went to the beer saloon at the corner. Whilst she was gone, the women who gathered round remonstrated with defendant for his cruelty. When his wife came back he ordered her into the house again. He then said: “You damned bitch, I am going to kill you, near as it is to night, before the lamps are lit.” She was afraid to go in and begged Emma Horner,--not present at the trial,--one of the women of her color standing by, to go with her. Deceased wanted first to carry the beer to her employers; but this woman suggested that she was too bloody. Defendant then went up the passage-way followed by the deceased, who came along holding to the apron of the woman Horner. Screams were immediately heard, and the deceased ran out holding her hands to her throat from which the blood was spouting. She ran to the nearest drug store; then came back, and rolled on the sidewalk till the ambulance wagon took her to the dispensary where she died within an hour of the occurrence. She was told by the physician on her arrival that her case was hopeless, and she herself said she was dying. An officer who was present was, by the state, put on the stand to testify as to her dying declarations, but the question was not pressed. It does not appear why, as it would seem that the foundation was sufficiently laid, and that the woman was well aware that she had but a few minutes to live. Defendant went at once to the house of an acquaintance in another part of the city, where he stated that he had cut his wife, and expected her to die, and asked advice as to the best method of getting out of town. He was arrested at Washington, Missouri, eleven months after the homicide.

1. It is contended that the trial court erred in refusing to instruct as to murder in the second degree, inasmuch as there was evidence tending to show a want of deliberation, and an immediate provocation calculated to produce heat of blood or passion. If this means that if a man orders his wife into the house, to butcher her at his leisure, and then cuts her throat as soon as she is off the street, if he chance to be in a bad humor at the time, this is not murder in...