State v. Luke

• Decision Date: 19 May 1891
• Citation: 104 Mo. 563,16 S.W. 242
• Parties: STATE v. LUKE.
• Court: Missouri Supreme Court

16 S.W. 242

104 Mo. 563

STATE v. LUKE.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

HOMICIDE — INDICTMENT — INSTRUCTIONS — CONTINUANCE — NEW TRIAL.

1. An indictment showing that the fatal blow was struck on a certain day, and that deceased languished one hour and then died, sufficiently indicates the date of the death.

2. The rule that exceptions must be taken at the time of an adverse ruling to entitle the party to a review of the action of the trial court applies as well to criminal as civil cases.

3. A refusal of a continuance in the midst of a trial to procure an absent witness is proper where it is not shown what is expected to be proved by him, or that any diligence has been used to procure his presence.

4. It is no excuse for defendant's failure to have a witness present that he supposed he had been recognized by the state to be present to testify at the trial.

5. There is no error in refusing instructions where the court has fully and correctly charged on the points involved.

6. Failure to state the materiality of newly-discovered evidence justifies the denial of new trial on account of such evidence.

Appeal from circuit court, Andrew county; C. A. ANTHONY, Judge.

Moran & Moran, for appellant. The Attorney General, for the State.

MACFARLANE, J.

The defendant was indicted by the criminal court of Buchanan county for the murder of Frank Callahan. Upon the application of defendant a change of venue was granted him to Andrew county, in which county defendant was tried and convicted of murder in the second degree. The evidence on the part of the state shows that at the time of the homicide John Self kept a saloon and restaurant on South Sixth street in the city of St. Joseph, Mo. Early in the evening of Saturday, September 14, 1889, deceased went to this saloon, and remained there until the difficulty which is alleged to have resulted in his death. The evening was spent in playing cards with different persons, and in drinking. Defendant was engaged in the restaurant as a cook. The evidence does not disclose how he spent his evening until about 11 o'clock, when he was engaged in cooking supper for George L. Winters, one of the patrons of the house. The following is the substance of the testimony of Charles Tatum, who was called as a witness by the state: "I am a brakeman on the railroad. I know where John Self's place of business is in St. Joe. It is on South Sixth street. I saw defendant and deceased at that place on the night of the difficulty. I went to that place about eleven o'clock at night. The difficulty commenced in this way: Callahan did not want to go home on account of its raining at the time, but John Self said he would have to shut up; that he could not keep open for one man. Defendant was in the back room [restaurant] at this time, but came in and said that he [Callahan] had to go when it was time to shut up, and Callahan made the remark that he did not want to go out in the rain. Callahan said if Jim was down there he could stay. He said Jim Self was a gentleman. Luke said: `Do you mean to insinuate that John Self ain't a gentleman?' Callahan said he didn't know John Self, but he did know Jim Self. By this time, I think, Mr. Winters came out, and Luke. I think, asked us up to drink, and asked Mr. Callahan to drink; but Callahan would not drink with him; and so we took a drink. Then Callahan asked us to drink, but Luke would not drink with him, so Callahan drank alone. Then they commenced talking about sense. Luke said Callahan had no sense, and Callahan said that he didn't know as he had very much any way. Luke said he could give him some sense, and Callahan said, `No; I don't want sense in the way you want to give it to me.' They kept on talking that way a little bit and then Luke struck him, and then they commenced warding off licks. I don't know as either one hit the other with fists. Luke could not make any headway on him, and he picked up a chair and hit him on the left side of the head. It was a large wooden chair. He took hold of the chair with both hands. When he hit him with the chair Callahan was standing about a foot and a half from the bar. He said, `That was a pretty hard blow.' I saw some blood on his ear. After deceased was struck he didn't try to do anything more. He went out at the door, and defendant went in the kitchen. He [defendant] soon returned with a butcher-knife. Callahan started to come back into the door, but John Self came from behind the bar, and went out and stopped him. I heard Callahan tell him if he would give him a half a pint of whisky he would go home; so John Self said he would, and told him to stay there at the door until he went and got it; and he got the whisky, and went to the door, and gave it to him. Callahan was drinking some at the time, but he was not what you might call drunk. This occurred about 12 o'clock at night, on the 14th of September, 1889. I saw the deceased the next day. Had a scar on the left side of his head." Two or three other witnesses testified substantially as did Tatum. Two police officers testified that between 12 and 1 o'clock they found deceased lying on the south porch of a vacant office about half a block from Self's saloon. When found he was groaning and unconscious, and died within a few minutes. The coroner, assisted by two other physicians, made a post mortem examination of deceased. They found a wound on the left side of the head, immediately over the ear, in the form of a triangle, an inch and a quarter running across the head, and an inch and a quarter running down the head, making a flap which raised up with a square corner. It was an ugly looking wound at the time, and looked as if the skull might be fractured. There were no other visible marks on the body anywhere. On taking off the skull it was found there was no fracture. On the right side of the brain evidence of concussion was found and extravasation. The opinion was that death ensued from concussion produced by a blow on the left side of the head. Defendant called two witnesses, who testified that between 12 and 1 o'clock on the night in question they were passing on the opposite side of the vacant office at which deceased was found, and heard and saw two men quarreling, and one of them knocked the other down. The fallen man did not get up, and they (witnesses) passed on, and saw nothing more.

The court instructed the jury on murder in the second degree and manslaughter in the second, third, and fourth degrees. Defendant asked three instructions, which were refused. The first of these, marked "a," was as to the presumption of innocence the...