State v. Lowe

• Decision Date: 28 November 1887
• Parties: STATE v. LOWE.
• Court: Missouri Supreme Court

5 S.W. 889

93 Mo. 547

STATE v. LOWE.

Supreme Court of Missouri.

November 28, 1887.

1. HOMICIDE — MURDER IN SECOND DEGREE — INDICTMENT.

An indictment for murder in the second degree charged that the act was done "feloniously, willfully, and with malice aforethought." Rev. St. Mo. 1879, §§ 1232, 1233, provide that deliberate and premeditated killing shall be murder in the first degree, and that "all other kinds of murder at common law, not herein," etc., "shall be deemed murder in the second degree." Held, that the words in the indictment sufficiently charge murder in the second degree.

2. SAME — INSANITY AS A DEFENSE — BURDEN OF PROOF.

In a trial for murder, where the defense was insanity, the evidence tended to establish an insane condition of mind existing for years. The court refused to instruct the jury that, if defendant was insane in 1877, when he left home, the presumption was that he was insane at the time of the homicide, and that the burden of proof was on the state to show defendant was sane at that time. Held error.¹

3. SAME — LUCID INTERVALS.

In a trial for murder the defense was insanity. Evidence tended to show it had existed for years. The court instructed the jury that, if the defendant was at times insane and at times sane, the burden of proof to establish insanity at the time of the killing was on defendant. Held error.

4. SAME — DRUNKENNESS.

In a trial for murder there was testimony that defendant was drunk at the time of the homicide, and the court charged the jury that such a condition did not palliate or excuse the crime. Held not error.²

Appeal from circuit court, Lewis county; BEN E. TURNER, Judge.

The Attorney General, for respondent. Blair & Marchand, for appellant.

SHERWOOD, J.

The counsel for the defendant who tried this cause in the circuit court, and are therefore presumed to be somewhat conversant with the facts therein, have not seen fit to furnish us with a statement of those facts. I will therefore have to wade through this voluminous record in order to become acquainted with them.

The homicide which caused this appeal occurred December 31, 1881, in the town of La Belle, Clark county, Missouri. On that day, about dark, Stodard, the landlord of the hotel, on going into the office, saw sitting there by the stove the defendant, in his socks. Several others were present, among them, the deceased, a negro, named Andy Roan, who was engaged in carrying water, when one Yates came in and asked Roan to pay a small debt he owed him. This was spoken in pleasantry, and was repeated; whereupon the defendant rose to his feet, and, with the exclamation, "I will make him pay it!" drew his pistol, and shot Roan in the abdomen, from which wound he died within a few days. The landlord, after a struggle, took Lowe's pistol from him. He then tried to make his escape from the room; but the landlord threatened to shoot him, and, on the second threat, he returned and seated himself in the chair from which he had arisen. The sheriff of the county then went into the office, when the landlord handed the pistol to him, and he asked the defendant why he had shot Roan, and he replied, "That is my business." Asked, also, by the sheriff why he carried the pistol, he replied in the same language. Just before the shooting, the defendant had asked to be shown to his room, and when the landlord went to see about a room for him, and returning told him he was ready to show him to his room, he replied that he did not believe he would go. Very soon thereafter the shooting occurred. It seems the defendant was a stranger to the landlord, and he certainly was to Yates, who had never seen him before that afternoon. Yates' story of the affair, in brief, is that, a little while before the shooting, the defendant, who had his overcoat on, and in his sock-feet and appeared to be drinking, hunched him with his elbow, and said, "I am drunk, — pretty d — d drunk. Don't give me away;" that he then handed a bottle of whisky to Yates and Hinson, and asked them to take a drink with him; but they refused, when the defendant said: "That leaves that much more for me." Yates also stated that the defendant, after telling the sheriff "That's my business," immediately thereafter said, "I submit, gentlemen. Let me get my boots on." Yates also said that the defendant looked like, and hiccoughed like, a drunken man, and his tongue seemed to be thick. Wilson was also present when the shooting occurred. Wilson had seen the defendant about a year before, when he and his nephew hired a horse and buggy from Wilson, who kept a livery stable. Wilson states that when the defendant shot Roan, he then made towards the door, after the pistol was taken from him, when Stodard told him to stop or he would shoot him, and Wilson then took hold of the defendant, and told him to stop or Stodard would shoot him, and that thereupon the defendant sat down in a chair and said nothing. Prior to the time of going to the hotel, the defendant had been at Wilson's livery stable, about 2 o'clock, when he made inquiry about feeding his horse, and about a hotel; that he looked like a man who was cold, not drunk, but this was some three hours before the fatal occurrence. Medical testimony was introduced, showing that the death of Roan was caused by the pistol shot.

Somers, sheriff, who arrested the defendant, had also seen him a couple of hours prior to the shooting in the room in which it took place. Lowe spoke to him and called him "doctor," and asked him what was the matter with him, (Lowe,) and asked him to feel his pulse. That Lowe had a bottle of whisky, drank from it, and asked him to drink. Wanted Somers to tell him what was good for him. Somers thought he was drunk; felt of his pulse, and told him to take some coal oil. Munn corroborates the testimony of Somers in most particulars. In addition, he says that Lowe told Somers he was drunk, and the latter replied, "I think you are," and prescribed coal oil; that after Lowe had taken a drink from his bottle, he came back, took a seat, and said he was "sanctified;" that Lowe, after saying he was drunk, repeated the remark with the qualification that he was "pretty d — d drunk." Said he was raised in Kentucky; was raising a crop at Williamstown. Said he would not tell where he got his whisky; that he was able to take care of himself; had bought his whisky and paid for it; could take care of himself; but did not want to be given away, and was down on his way below La Belle. This witness says, also, that Lowe appeared to be somewhat under the influence of liquor; not exactly steady on his feet; his articulation not very good; seemed like a man who had been riding in the cold, and stunned. His son, also a witness on behalf of the state, testified to seeing Lowe drink, and that he appeared to be drunk. This witness confirms the statement of Yates that Lowe, when they refused to drink with him, said: "There will be that much more left for me."

The state here rested, and evidence was introduced for the defense. It consisted in part of numerous depositions taken in Kentucky. I will give the substance of four of these depositions, and let them stand as types of the others.

The deposition of McSpeak, taken in July, 1882, in Boone county, Kentucky, was to the effect that he became acquainted with the defendant, in 1864, in Grant county, Kentucky, where Lowe and witness lived; that his full name was William Morehead Lowe; some called him "Mose" Lowe. Knew him personally and intimately. Had worked for him in Kentucky some five months in Grant county, Kentucky. Knew him from some time in 1864, some five or six years, until Lowe moved to Missouri. That in June or July of said year, while the witness lived with Lowe and slept in the same room with him, Lowe left home directly after dinner, and returned in the evening just before supper, ate supper, when witness and others present tried to induce Lowe to go to bed; but he refused, stating that he was afraid; dare not sleep in the room; but went down into the orchard, and that was the last seen of him until morning, when witness, on getting up, saw Lowe coming up from the orchard, and asked him where he stayed the previous night, when he replied: "I dozed there, and they did not get me." Witness then asked him "Who?" when he said, "Them fellows," and that was all the reply he would make; that after breakfast Lowe would work a few minutes, and then dodge off at something else, — did not work at regular work, as he usually did; that he looked wild out of his eyes the evening he came home, seemed excited and scared all the time, and remained in that condition some four or five days. Witness further stated that in June, in the year 1866, he was at work in his own corn-field close to where Lowe lived, when the latter called him by name to come to him, the sound of the voice indicating he was in some brush; that witness called to him to come to witness, but Lowe replied: "I can't; you must come to me." Witness then started in the direction from which the voice proceeded, and found Lowe crouched down behind a stump in some brush, looking wild out of his eyes, and afraid of something or somebody. Witness then spoke to him, and asked him what he was doing there, when he replied, "Them fellows are after me;" and when witness asked him, "What fellows?" Lowe said, "Them fellows, — they were after me all night, and they are still after me to-day;" and witness could not persuade Lowe to the contrary.

Witness further stated that on that occasion Lowe insisted on witness going with him to "Dry Ridge," saying that if witness would go, "them fellows would not hurt him." Witness thereupon went with him to Dry Ridge, stayed with him all day, and returned with him to witness' house, where he stayed all night. In the morning seemed better, but still looked wild out of his eyes when he went home. That on these occasions, though he was in the habit of taking his dram like other...