State v. McNeese
| Decision Date | 28 May 1926 |
| Docket Number | No. 26492.,26492. |
| Citation | 284 S.W. 785 |
| Parties | STATE v. McNEESE. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.
Richard McNeese was convicted of murder in the second degree, and he appeals. Affirmed.
S. E. Garner, of St. Louis, for appellant. North T. Gentry, Atty. Gen. (J. W. Campbell, of Stockton, of counsel), for the State.
Indicted for murder in the first degree in the circuit court of the city of St. Louis, in January, 1924, the defendant was tried and convicted as charged, and his punishment assessed at imprisonment for life. Upon the granting of a new trial, he was found guilty of murder in the second degree, and his punishment assessed at 30 years' imprisonment in the penitentiary. From this judgment he appeals.
This murder was perpetrated at about 1 o'clock p. m., December 20, 1923, in the engine room of the Superior Laundry Company, 1745 South Eighteenth street in the city of St. Louis.
The deceased, Milton Miles, a fireman, employed by the company, was at the time adjusting a valve on an oil tank connected with the engine when the defendant approached him rapidly from the rear, seized him by the neck, and began stabbing him with a knife which he carried opened in his hand as he approached the deceased. The deceased tried ineffectually to break the hold of the defendant, but was unable to do so. The latter did not desist from the assault until the engineer ran to the assistance of the deceased, and struck the defendant with a block of wood, when he loosened his hold and ran away. Several, other employees corroborate the statement of the engineer as to the assault. The deceased, upon being released from the hold of the defendant, staggered into the laundry office near at hand and was taken in an automobile by the engineer to a hospital, where he lingered until December 22, 1923, or two days after being assaulted, when he died from the wounds inflicted by the defendant. "
The defendant, testifying in his own behalf, stated that the deceased assaulted him with a knife, and that he stabbed him in self-defense. This testimony was shown by four eyewitnesses to the murder, who testified for the state, to be without any foundation in fact; in short, that it was utterly false; that the deceased, when attacked, had his back turned to his assailant and was seemingly oblivious of his approach until he was seized and repeatedly stabbed. He had, when attacked by the defendant, no weapon — not even a pocket knife, on his person. The physical examination of the body of the deceased at the coroner's inquest disclosed that he had received three knife wounds; one along his face about three inches long; one across his neck about two inches long; and one through the abdominal wall, just a little above the left pelvic bone, and from two and a half to three inches in length on the left side of the abdomen, deep enough to sever one of the intestines and permit the egress of its partially digested contents. The death of the deceased was declared by medical experts to have been primarily due to peritonitis, induced by the severing of an intestine by a knife or some sharp instrument.
Several witnesses for the defense testified as to the reputation of the defendant, before the assault, for peace and quiet. At the close of all the testimony the defendant asked, and the court refused to give an instruction on self-defense, as drawn by counsel for the defendant.
I. The defendant urges no error, except the insufficiency of the instructions. Those given were, first, on murder in the first and second degree, in which were included the well-defined differences between these two grades of homicide, the essentials necessary to constitute each, and the duty of the jury, if, from the evidence, they found the defendant guilty of either, or to acquit if they found him not guilty. The second instruction was on self-defense. It stated the law in relation thereto, defined the duty of the jury in the event they found this defense to be sustained by the evidence, and conversely stated their duty if they found such defense not so sustained. The third instruction defined a presumption of innocence, a reasonable doubt, the manner in which proof of good character may be considered, and the weight and credibility to be given to the testimony of the witnesses. These instructions were in the usual forms often approved, under a like state of facts, in cases of this character, and are not subject to tenable objection.
II. It is contended, however, that the court should have given an instruction on manslaughter. It is not open to question that an instruction on this grade of homicide should be given whenever there is evidence tending to establish the same. It is equally true that, where the evidence adduced in support of a lower grade of homicide is confined to the testimony of the defendant alone, and is directly contradicted, not only by the testimony of eyewitnesses to the difficulty but by all of the physical facts, an instruction on such lower grade should not be given. Section 4025, R. S. 1919; State v. Webb (Mo. Sup.) 205 S. W. loc. cit. 190; State v. Douglas, 258 Mo. 291, 167 S. W. 552; State v. Weinberg, 245 Mo. 575, 150 S. W. 1069; State v. Starr, 244 Mo. loc. cit. 176, 148 S. W. 862. This rule accords with reason, and is promotive of a wholesome administration of the criminal law. It has been upheld in many cases. In State v. Tucker, 232 Mo. loc. cit. 18, 133 S. W. 27, it is held that, where the statements of the defendant contradict the physical facts, and are inconsistent with human experience, the court is not bound to believe them, nor to instruct thereon for a less grade of homicide than that supported by all the other testimony. In State v. Arnold, 206 Mo. loc. cit. 600. 105 S. W. 641, it is held that neither courts nor juries are required to accept as true evidence contradictory of the admitted physical facts in the case. In State v. King, 203 Mo. loc. cit. 571, 102 S. W. 515, the defendant sought to have the court give an instruction for a lower grade of homicide, based on his own testimony. Its refusal by the trial court was sustained upon appeal, on the ground that neither courts nor juries are required to stultify themselves by rejecting the irrefutable facts in a case. In State v. Vaughan, 200 Mo. loc. cit. 22, 98 S. W. 2, it is held that courts are not required to yield credence to the statements of a defendant absolutely inconsistent with the physical facts, and base an instruction on such simulated evidence. In State v. Fraga, 199 Mo. loc. cit. 136, 97 S. W. 898, it is held that, where the facts are clearly inconsistent with the defendant's account of the homicide, he is not entitled to an instruction on the ground of self-defense. In State v. Gartrell, 171 Mo. loc. cit. 523, 71 S. W. 1045, it is held, in a murder case, that neither courts nor juries are bound to accept testimony contrary to well-known physical laws or the common experience of mankind, and hence an instruction asked by defendant, based on his testimony alone, was held to be unauthorized. In State v. Pollard, 139 Mo. loc. cit. 228, 40 S. W. 949, it is held that neither courts nor juries are required to yield credence to the statements of a defendant who, to save himself from justly merited punishment, challenges the array of all the physical facts ill the case, and then boldly...
To continue reading
Request your trial