State v. McNamara

Decision Date19 May 1908
Citation110 S.W. 1067,212 Mo. 150
PartiesSTATE v. McNAMARA.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Michael McNamara was convicted of murder in the second degree, and he appeals. Reversed and remanded.

C. P. Johnson and Silver & Brown, for appellant. The Attorney General, N. T. Gentry, and A. N. Sager, for the State.

GANTT, J.

This is an appeal from the judgment and sentence of the circuit court of the city of St. Louis sentencing the defendant to the penitentiary for 15 years for murder in the second degree. The indictment charged murder in the first degree by the defendant on the 23d day of August, 1906, at the city of St. Louis of Mrs. Nellie McNamara by shooting her with a certain pistol charged with gunpowder and a leaden ball, and inflicting upon her one mortal wound, of which she instantly died on said day, at the city of St. Louis. The indictment is in the form expressly approved by this court in State v. Gray, 172 Mo., loc. cit. 434, 72 S. W. 698, and on many occasions since the announcement of that decision, and for that reason it will not be set forth at length in this opinion.

The deceased, Mrs. Nellie McNamara, was the wife of the defendant, and he shot and killed her on the 23d day of August, 1906, in a building known as 1730 Olive street, and otherwise known as the "Royal Hotel." The defendant and the deceased were married in the city of St. Louis on the 29th of November, 1903, and went to housekeeping immediately after their marriage on Bacon street, in St. Louis, and kept house there until about April 23, 1905. One child, a boy, was born of this marriage. About April 23, 1905, they broke up housekeeping and began to board with the mother and father of the deceased, and continued to do so until about December 4, 1905. On the last-mentioned date they moved to a flat on Benton street, and lived there. On March 19, 1906, the deceased left the defendant and went to live with her mother, taking the child with her. The defendant continued to live in the flat for about two weeks after the deceased left him. After the deceased had left the defendant, she went with a friend of hers to the house and gathered up some of her child's clothes, a high-chair, and a go-cart, and carried them to her mother's. The deceased continued to live with her mother, Mrs. Mansur, until the day of the homicide, except that she the last month before her death rented a room from Mrs. Graham, on Glasgow avenue, where she stayed at night, but continued to be with her mother during the day. The evidence tended to show that during this last month the defendant agreed to pay her $30 per month out of his salary for the maintenance of herself and child, and the evidence tends to show that he did pay her that sum about the 1st of August. During the time that she was separated from her husband and resided at her mother's house, and during the time that she lived at the Glasgow avenue house, the evidence tends to show that the defendant visited her constantly at night, and would sit out and talk with her for several hours each evening. There was also evidence that during this time they would have wordy altercations. Defendant also took his wife during their separation out to Delmar Garden and Meramec Highlands. The evidence tends to show that before the homicide the defendant had suspicion of infidelity on the part of the deceased. There was much evidence on the part of the state to the effect that the defendant did not provide suitable clothing and necessaries for his wife, the deceased, and his child. It seems that on one occasion while living with her mother the deceased threatened to get a divorce, so that defendant would let her alone, and he said to her; "Get a divorce, G___d d___ you; but, if you had 10,000 divorces, you will still be my wife, and the first man I see with you I will kill you." On the part of the state the evidence tended to show that on the afternoon of the homicide the defendant, who was a police officer of the city of St. Louis, was excused from duty by Police Sergeant Sullens an hour sooner than usual, as the defendant said he wished to go with his wife to see a physician and consult about their baby's health; instead, however, the defendant visited McDonough's grocery store on Leffingwell avenue, and was seen there a little before 7 p. m. by Joseph Mulligan. The defendant was sitting down on a sugar barrel in front of said store, the store being about one-half a block from and in view of the residence of Mrs. Mansur, the mother of the deceased, where the deceased was then living. The Royal Hotel was situated at 1730 Olive street, St. Louis, and Charles Brown was the hotel clerk at that time. Brown testified that he saw the deceased walk into the hotel office in company with a man who turned out to be Brophy, and that Brophy took a pen and registered under the name of J. C. Wilson and wife, and asked for a room for himself and wife. The deceased had stopped a little way from the office counter, and was standing there when the defendant came into the office. Brown heard the deceased cry out: "Murder! Tell that man to run." The defendant had taken hold of the deceased by the hand, and was pulling her along towards the desk, and ran against Mr. Brown. The defendant said, "That is my wife," and fired at Brophy. Brophy ran down the hall, and defendant followed him, overtaking him, and after a scuffle defendant grabbed hold of Brophy around the neck and fired four or five times in succession. During this firing Brown concealed himself behind the counter, and did not see the shooting of defendant's wife, but saw her dead body a few minutes later. Edward Freeman, porter of the Royal Hotel, testified that, when the defendant came into the hotel, the deceased was standing 10 or 12 feet from the swinging doors of the toilet room, and the defendant addressed the witness, and said: "That is my wife. Where is the man?" The deceased turned, and started for the door leading down the side entrance, and the defendant caught hold of her and pulled her down the hall towards the clerk's desk where Brophy was standing, and the first shot was fired at Brophy. The porter took refuge in a room to one side, and heard five or six shots. The defendant then ran out of the hotel office and the porter came out into the hall, and saw Brophy's dead body lying on the floor and the body of the deceased lying on the steps leading to the street. A post mortem was held, and the physician testified that he found a gunshot wound in the body of the deceased, which entered in front, passed through the aorta, and came out near the spinal column. This wound was made by a 38-caliber bullet, and was a mortal wound. Police Officer Joyce stated that he was in the neighborhood of Eighteenth and Olive, at the corner where the Royal Hotel was located, on the evening of the homicide about 8 o'clock, when he heard four or five shots. He says that, after the shots were fired, he saw a man running out the Eighteenth street entrance of the Royal Hotel towards Pine street, and he and Officer O'Brien followed him to Pine street, where the man said something to a driver of an ambulance, which was passing; that when they reached him they found it was the defendant, McNamara, and, when asked who did the shooting, he said: "He will never ruin anybody else's home. I shot my wife and the man I caught with her at the Royal Hotel." They then took him to the hotel, and the...

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19 cases
  • State v. Warren
    • United States
    • Missouri Supreme Court
    • 25 Noviembre 1930
    ...degree and does not include the necessary elements of that crime. State v. Speyer, 207 Mo. 540; State v. Davis, 12 S.W. (2d) 427; State v. McNamara, 212 Mo. 150; State v. Bohanan, 76 Mo. 562; State v. Slusher, 301 Mo. 285, 256 S.W. 819; State v. Gabriel, 301 Mo. 365, 256 S.W. 767; State v. ......
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    • United States
    • Idaho Supreme Court
    • 17 Septiembre 1913
    ... ... 80; People ... v. Schweitzer, 23 Mich. 301; Welhousen v ... State, 30 Tex. App. 623, 18 S.W. 300; People v ... Hurley, 126 Cal. 351, 58 P. 814; Raymond v ... Commonwealth, 123 Ky. 368, 96 S.W. 515; People v ... Dixon, 118 A.D. 593, 103 N.Y.S. 186; State v ... McNamara, 212 Mo. 150, 110 S.W. 1067; Brown v ... State, 54 Tex. Cr. 121, 112 S.W. 80; State v ... Sparks, 79 Neb. 504, 113 N.W. 154; State v. Missouri ... P. Ry. Co., 219 Mo. 156, 117 S.W. 1173; State v ... Hight, 150 N.C. 817, 63 S.E. 1043; People v ... Dudenhausen, 130 A.D. 760, 115 ... ...
  • State v. Jackson
    • United States
    • Missouri Supreme Court
    • 24 Junio 2014
    ...that a court in the trial of a criminal prosecution cannot direct the jury to return a verdict of guilty[.]” State v. McNamara, 212 Mo. 150, 110 S.W. 1067, 1071–72 (1908). We have held that in criminal cases “no court in Missouri has the power or right to direct a verdict of guilty in the f......
  • State v. Warren
    • United States
    • Missouri Supreme Court
    • 25 Noviembre 1930
    ... ... Mo. 357. (8) The court erred in giving to the jury ... Instruction S-12. (a) It directs a verdict of murder in the ... first degree and does not include the necessary elements of ... that crime. State v. Speyer, 207 Mo. 540; State ... v. Davis, 12 S.W.2d 427; State v. McNamara, 212 ... Mo. 150; State v. Bohanan, 76 Mo. 562; State v ... Slusher, 301 Mo. 285, 256 S.W. 819; State v ... Gabriel, 301 Mo. 365, 256 S.W. 767; State v ... Jones, 309 Mo. 50, 273 S.W. 731; State v ... Welch, 311 Mo. 476, 278 S.W. 759; State v ... Helton, 234 Mo. 559; State ... ...
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