State v. Lewis
| Decision Date | 20 November 1896 |
| Parties | The State v. Lewis, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.
Affirmed.
Silver & Brown for appellant.
(1) The court erred in refusing to allow defendant to show by Dr Frank and Dr. Coryell that she had received injuries nine or ten months before the homicide which predisposed her to attacks of unconsciousness, hysteria, and other disorders of her powers of perception, reason, memory or will, when under the influence of excitement from any cause. She testified that after the deceased struck her the second time she became unconscious and did not regain consciousness until after she was taken to the hospital. She neither admitted nor denied the killing. The court properly instructed the jury that if at the time of the shooting, she was, from any cause, so unconscious of her acts, as not to know what she was doing they should acquit her. (2) It was error to compel her to go to the jury upon her uncorroborated testimony upon a point conceded by the court to be vital to her defense when she had competent corroborating testimony at hand upon that point which she was precluded by the ruling of the court from presenting for their consideration. (3) The defense sought to be established here was in effect the positive, affirmative defense of insanity, and the burden of establishing it rested upon the defendant. State v. Schaefer, 116 Mo. 96, and cases cited; State v. Redemeier, 71 Mo. 173. The defendant was clearly entitled to establish her affirmative defense by positive and competent testimony, and she was not required to wait until her own testimony on that point was attacked before being allowed to establish her case. Baldwin v. State, 12 Mo., side p. 231; State v. Redemeier, 71 Mo. 173; State v. Williamson, 106 Mo. 162. (4) The defense of insanity need only be established to the reasonable satisfaction of the jury. This has been the law in this state since the decision in Baldwin v. State, 12 Mo., side p. 232. State v. Redemeier, 71 Mo. 173; State v. Williamson, 106 Mo. 162; State v. Schaefer, 116 Mo. 110. (5) The court undertook to give proper instructions, and it was its duty to do so, whether asked or not, the matter in question not being a collateral one. State v. McNamara, 100 Mo. 100; State v. Brooks, 92 Mo. 543. (6) The court committed reversible error in instructing the jury upon murder in the second degree. The testimony for the state showed the defendant guilty of murder in the first degree; that for defendant showed her guilty only of manslaughter of the fourth degree, or of no offense at all. There was no evidence upon which to base an instruction for murder in the second degree. State v. Mahly, 68 Mo. 318, 319; State v. Stoeckli, 71 Mo. 559; State v. Schoenwald, 31 Mo. 151; State v. Starr, 38 Mo. 269; State v. Alexander, 66 Mo. 148. (7) According to the testimony of defendant, she did not know whether she killed the deceased or not. If she did kill him she was not conscious of it. The testimony that another killed him was not necessarily inconsistent with her own, and she was entitled to interpose as many defenses as she had, provided they were not inconsistent with each other. (8) The court erred in refusing to permit proof of a previous brutal assault upon defendant by deceased. Such evidence would have tended to show a reasonable fear of danger impending and about to fall, the apprehension of which up to the point of unconsciousness would have impelled her afterward to impulsively defend herself against the attack, even to the taking of the assailant's life.
R. F. Walker, attorney general, and C. O. Bishop for the state.
(1) There is no error on the face of the record proper. (2) The instructions fully cover the law of the case and are favorable to appellant. (3) There was no testimony admitted over defendant's objections which was incompetent. (4) Insanity is an affirmative defense, a plea of confession and avoidance, and evidence of insanity is only admissible upon the theory that the accused committed the act but was excused from criminal responsibility. State v. Pagels, 92 Mo. 300. So also self-defense is an affirmative, positive, intentional act. State v. Gilmore, 95 Mo. 554; State v. Smith, 114 Mo. 406.
At the October term, 1895, of the St. Louis criminal court the defendant was convicted of murder in the second degree and her punishment fixed at fifteen years' imprisonment in the penitentiary, for having shot and killed with a pistol at said city on the thirteenth day of May, 1895, one Peter R. Morrissey. The case is before us for review on defendant's appeal.
The statement of facts made by counsel for the state is conceded to be correct by defendant. It is as follows:
Deceased was the proprietor of a saloon and restaurant in the city of St. Louis; appellant was the keeper of a bagnio at 2719 Wash street; and there had been for some time illicit relations between them which had been at intervals broken off and resumed. On the night of May 12, 1895, in the neighborhood of 11 o'clock, deceased was in his saloon chatting with various friends, among whom were two young physicians, named Frank and O'Reilly. Appellant, accompanied by one of her "girls," came into the lunch room adjoining the saloon; she called to the deceased to come and drink with her, but he declined, saying he had friends with him, to which she retorted, "damn your friends." She several times repeated the invitation, coming to the door between the two apartments, but he continually declined, until about midnight, when, after ordering everybody out of the saloon and directing his barkeeper to close up for the night, he went into the lunch room accompanied by the two doctors. The party drank together several times, during which appellant urged deceased to go home with her, he refusing and at one time telling her he proposed to go and see some other woman that night. Deceased seemed vexed by her persistency, and at one time took a bank note from her purse and tore it in two, throwing the pieces on the floor; they were picked up by one of the doctors and returned to her.
At length deceased agreed to go with her to her home if his friends would go; a carriage was sent for and the whole party left the saloon. Deceased seemed very drowsy and went to sleep in the carriage. They arrived at the house of appellant about 2 o'clock in the morning of May 13, 1895. The doctors and the "girls" went in, but deceased refused to leave the carriage for some time, and did not get out until a police officer came up, and he was assisted in the house by him and the appellant. The entire party were then in a parlor or reception room, about in the center of the house, to which access was had by a hall from the front door; in front of this parlor, next to the street, was the bed chamber of appellant, and in the rear was the kitchen; from the parlor a flight of stairs led to a hall on the second floor and to rooms over the parlor and bed chamber occupied by appellant's two "girls," and over the kitchen was a small room occupied by an old man named Andrews, a sort of factotum in the establishment. After drinking some beer, the doctors retired upstairs, each with a girl, the officer withdrew and appellant and deceased were left together in the parlor.
The parties upstairs had disrobed and lain down, when two noises were heard in succession like the "slam of a window." Dr. O'Reilly sprang from the bed, opened the door and saw the man Andrews going downstairs; he called to Dr. Frank and followed Andrews down, being in his underclothes; when he got into the parlor he found appellant swearing and hysterical, and saw that Andrews had a pistol in his hand; going into the bedroom he found Morrissey lying in the bed on his back with one arm under his head and the other across his breast, his eyes closed as if asleep, two wounds in his face, and the skin powder burned; he was dead. Dr Frank partially dressed himself and went downstairs; found appellant struggling with Andrews to get possession of a pistol and shouting, "I've killed my Pete; give me that pistol I want to kill myself." He also went into the bedroom,...
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