State v. Martin

• Decision Date: 05 November 1894
• Parties: The State v. Martin, Appellant
• Court: Missouri Supreme Court

28 S.W. 12

124 Mo. 514

The State v. Martin, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Jackson Criminal Court. -- Hon. John W. Wofford, Judge.

Affirmed.

Thos N. Williams and T. R. Stockton for appellant.

(1) Lyle, being a codefendant, was not a competent witness against defendant. R. S. 1889, sec. 4217; State v Martin, 74 Mo. 547. (2) The court erred in admitting the evidence as to what Stillwell said as to the person who cut him. Rex v. Benderfield, 14 Cox Crim. Cases; Railroad v. Becker, 128 Ill. 545; Adams v Railroad, 74 Mo. 553; Railroad v. Mara, 26 Ohio St. 185; People v. Ah Sin, 60 Cal. 85; Denton v. State, 1 Swan (Tenn.), 279; Roscoe's Criminal Evidence, page 26; Walde v. Railroad, 95 N.Y. 274; People v. Murphy, 101 N.Y. 126. (3) It was error to sustain the state's objection to question to defendant as a witness: "State whether or not Lyle said anything to you as to what he had done?" Also, "If this knife was found in your mother's house, do you know how it got there?" (4) The court erred in overruling the defendant's objection to question to his witness Washington on cross-examination: "I will ask you how many times you have been in jail on a sentence for crime?" This question was clearly incompetent -- the record was the best evidence. State v. Douglass, 81 Mo. 232; State v. McGraw, 74 Mo. 110; State v. Rugan, 68 Mo. 214; State v. Lewis, 80 Mo. 110; State v. Brent, 100 Mo. 531; 1 Greenleaf on Evidence, sec. 457. (5) The court should have instructed on manslaughter. "If there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is the duty of the court to give the law of such inferior degree." State v. Evans, 36 Kan. 497; Bishop's Crim. Proc., sec. 980; 3 Greenleaf [7 Ed.], sec. 122; 2 Bishop on Criminal Law [3 Ed.], secs. 725 and 727 and note 4 to sec. 728.

R. F. Walker, Attorney General, Morton Jourdan, Assistant Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.

(1) The testimony of Willets, as to the remark made by Stillwell, after he was taken to the saloon, was admitted as part of the res gestoe. The rule of the res gestoe admits declarations made under the impulse of the occasion, though somewhat separated in time and place, if so woven into it by the circumstances as to receive credit from it. Abbott's Trial Brief, sec. 628; Wharton on Evidence, sec. 259; State v. Gabriel, 88 Mo. 631; Henry v. Sneed, 99 Mo. 421. (2) The declaration in question was made by the deceased contemporaneously, or nearly so, with the main event, in consequence of which he died, and was as to the cause of that event, and between the event and the declaration were such connecting circumstances as are held sufficient. The facts as to this declaration are very similar to those in Com. v. Pike, 3 Cushing, 181, a case which was cited with approval in Brownell v. Railroad, 47 Mo. 239; State v. Sloan, 47 Mo. 604; Harriman v. Stowe, 57 Mo. 93; Entwhistle v. Feighner, 60 Mo. 215. (3) Instruction number 7, in connection with number 5, correctly and fully declares the law on the use by one assaulted of words of reproach or epithets, toward his assailant prior to the assault. State v. Elliott, supra; State v. Gee, supra; State v. Starr, 38 Mo. 271; State v. Brown, 64 Mo. 373. (4) The act of "pushing," testified to by defendant, was not done by Stillwell, who "pushed" Lyle, not Martin. There was no evidence of a provocation to passion by personal violence -- the kind of provocation necessary to reduce the killing to manslaughter. State v. Starr, supra; State v. Bulling, 105 Mo. 221; State v. Wilson, 98 Mo. 449; State v. Talmage, 107 Mo. 571; State v. Ellis, 74 Mo. 217; State v. Howard, 102 Mo. 147. (5) No instructions were given on manslaughter, and none should have been given. If the jury believed defendant, he was innocent. Under no testimony whatever was there a case of manslaughter against the defendant. State v. Talbott, 73 Mo. 347; State v. Wilson, 88 Mo. 19; State v. Terrell, 97 Mo. 107; State v. Turlington, 102 Mo. 660; State v. Harvey, 95 Mo. 455. (6) The verdict was warranted by the evidence.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

At the September term, 1893, of the criminal court of Jackson county, at Kansas City, Philip Martin and Frank Lyle were jointly indicted for the murder of Eli Stillwell, by stabbing, on July 4, 1893. A severance was granted and the defendant herein, Philip Martin, was put upon his trial and the jury returned a verdict of murder in the first degree against him.

The defendant is a young negro man. Eli Stillwell was a white man, day laborer, and was married. He resided with his family at Seventeenth and Vine streets, Kansas City. On the fourth day of July, 1893, Stillwell had been drinking until he was perceptibly intoxicated, though not enough so to prevent his walking. About 10 o'clock on the night of that day he met his brother-in-law, Charles Stewart, who had come from Sibley, and together they started for Stillwell's home, walking east on Eighteenth street. When they reached a point near Harrison street, they met the defendant Martin and his codefendant Lyle, another negro man, going in the opposite direction from a negro picnic in the neighborhood of Eighteenth and Grove streets. Stillwell and Stewart were walking together abreast, going east, and Martin and Lyle abreast, going west. The parties were wholly unacquainted with each other. The sidewalk was about twelve feet wide, affording ample opportunity for the passage of both parties, but when Martin and Lyle came within four or five feet of the white men they threw themselves shoulder to shoulder and pushed themselves between Stillwell and Stewart with such force that it shoved Stewart out toward the street and Stillwell in toward the buildings on the inside of the walk. The two negroes passed on about ten feet, when Stillwell, who had been staggered by the shoving, said "don't shove me" or "don't push me."

As if expecting some protest, the two negroes immediately halted and turned about, and the defendant Martin commanded Stillwell "to move on," and as Stillwell did not obey this order promptly, advanced on him, as the sequel shows, with an open knife in his hand, and, without further provocation, stabbed him with the knife, the blade of which penetrated the left breast, cutting the arch of the aorta, and inflicting a wound from which Stillwell died that night. Either Martin or Lyle then attacked Stewart also, and he ran across the street to avoid them. Stillwell immediately called for the police, and ran or walked a few feet and fell down, exclaiming, "I'm fainting," "I am gone," "Catch me." His cries attracted several persons and he was carried into a saloon near by, and a physician sent for, who resided a block and a half away, but he declined to come, either for the reason that it was too late, or he was sick. He was at once taken into the saloon, and while yet bleeding profusely, and not exceeding five minutes, an officer arrived and inquired of Stillwell, "Do you know who did it?" and he answered "Yes; two niggers; one a little yellow fellow."

After stabbing Stillwell, the defendant Martin and his codefendant Lyle resumed their journey west, together. As they moved on, Martin, the defendant, was heard to say, "I fixed him," and further down the street Martin showed Lyle the knife with which the stabbing was done. It is of the kind the negroes of that city call "a switch," and, it seems in very general use among them.

The defendant Martin was arrested next morning at his home and the knife, with the handle and blade both still fresh with blood, was found in his house. After defendant was confined in his cell in the city prison one of his fellow-prisoners inquired if he was not sorry he did that, and he replied, "No, I am glad I killed the white son of a bitch, and if I had it to do over, would do it again."

At the trial, defendant testified in his own behalf and said that Lyle did the cutting, and that the knife belonged to Lyle and not himself. He admitted fully and circumstantially his presence at the scene of the homicide, and that he and Lyle were together and had the altercation with Stillwell and Stewart, but says Stillwell called Lyle "a black son of a bitch," and then Lyle stabbed him. In rebuttal his character for morality was shown to be very bad. In other words, his reputation was that of "a tough," and he had on another occasion stabbed a man named Hurley.

The court instructed the jury on murder in the first and second degrees; on the credibility of witnesses, and reasonable doubt, and the presumption of innocence, and refused to instruct on manslaughter in the fourth degree, and self-defense.

I. Learned counsel for defendant assign as error the failure to instruct on manslaughter in the fourth degree. Their theory of the case is that the defendant did not do the cutting; that deceased was stabbed by Lyle, who was only guilty of manslaughter in so doing, because he was provoked thereto by the vile epithet applied to him by the deceased, and in addition thereto that there was evidence tending to show that Stillwell and Stewart were the aggressors.

We are of opinion that there was no evidence in the case upon which to base an instruction for manslaughter. Stewart, who was present, testified that Stillwell was doing nothing, when Martin stabbed him. He says Lyle was on the outer edge of the sidewalk nearer to him, Stewart; and in this he is thoroughly corroborated by the witness Perkins, the paper hanger and painter, who says not only that Martin stabbed Stillwell but that "Stillwell was doing nothing." The defendant was innocent not only of murder, but of...