State v. Miller

• Citation: 264 Mo. 395,175 S.W. 187
• Decision Date: 30 March 1915
• Docket Number: No. 18643.,18643.
• Parties: STATE v. MILLER.
• Court: United States State Supreme Court of Missouri

175 S.W. 187

264 Mo. 395

STATE v. MILLER.

No. 18643.

Supreme Court of Missouri, Division No. 2.

March 30, 1915.

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Joseph Miller was convicted of murder in the second degree, and he appeals. Affirmed.

Loyd Martz and Broaddus & Crow, all of Kansas City, for appellant. John T. Barker, Atty. Gen. (S. P. Howell, of Jefferson City, of counsel), for the State.

WALKER, J.

In an information filed by the prosecuting attorney of Jackson county the defendant was charged with murder in the second degree in having killed one Donahue. Upon trial defendant was convicted as charged, and his punishment assessed at ten years' imprisonment in the penitentiary. From this judgment he applied for and was granted an appeal to this court, and a stay of execution was ordered upon his giving the bond required.

The deceased, a young man with a disabled hand, lived with his old and invalid mother at 315 East Eighteenth street, in Kansas City. The defendant lived across the street with his family, consisting, so far as the record shows, of his wife and a little girl eight or nine years of age. The afternoon preceding the homicide the defendant and his wife became very much incensed at the Donahues because, as defendant's wife charged, a sister of the deceased had, in sprinkling the lawn, thrown water on the defendant's little girl. Later, at about 6 o'clock p. m., an officer was called to the scene to quell the disturbance caused by the loud and boisterous conduct of defendant's wife. Upon his arrival the officer found defendant and his wife in front of the residence of old Mrs. Donahue. The deceased said he did not desire defendant and his wife arrested, but asked the officer to take them away, as his mother was very ill, and their conduct was annoying her. The wife was drunk, with uncovered head and dishevelled hair, and loudly and profanely abused the Donahues. The defendant attempted to drag her away, but from time to time shook his fist and hurled imprecations at the Donahues. When the officer asked defendant the nature of the trouble, he said that Charles Donahue had struck his wife. The officer asked him if he wanted Donahue arrested, to which he replied, "I will take care of that myself," or "1 will get him later." The officer drove the defendant and"his wife away, and, upon their promise not to return, let them go without arresting them.

About 8:30 o'clock that evening the deceased, accompanied by two others, went into a saloon in the immediate neighborhood to get a glass of beer. At the time there were in the saloon, in addition to the bartender, three others, one of them a brother of defendant. Soon thereafter defendant came in, and he and the deceased clinched, and after a short struggle defendant broke away, and, running behind the bar, asked the bartender to give him a revolver. The latter complied, but immediately thereafter took the pistol away from the defendant, and, pointing it at the deceased and his two associates, ordered them out of the saloon. While this was occurring the brother of the defendant struck, first, the deceased, and then one of his associates, felling the latter to the floor. The two who had entered with the deceased then ran out of the saloon followed 337 the brother of the defendant, and the deceased fell out of the saloon door as the result of a blow on the back of the head from a rock in the hand of the defendant. The deceased struck the sidewalk face downward, and, as he fell, the defendant ran out and kicked or stamped him on the head and neck. From the injuries thus received the deceased died before he was removed to his mother's home near by. The autopsy disclosed contused wounds on his face, different parts of his head, and the back of his neck, and that the latter was broken. The deceased was not under the influence of liquor at the time he was assaulted, and no weapons of any character were found on his person.

Defendant's witnesses testified that the de ceased was the aggressor; that with two others he entered the saloon, called for beer, and, seeing defendant, said, "Joe Miller, I am looking for you," and followed this with an attack upon defendant; that Miller ran behind the bar and asked the bartender for his The latter says he refused, but ordered the parties out of the saloon. The deceased then tried to hit the defendant with something or to cut him, but the witness, who was the bartender, could not state the nature of the weapon. In the main, the witnesses for the defense corroborated the testimony of the defendant. Aside from the Millers, those present were Labello, the bartender, O'Neilio, and Temposky—names indicative of Italian and Galician origin. This aside, however, save to add that the jury did not believe those who testified for the defense.

After defining the technical words employed in an indictment or information charging murder, the court instructed the jury on murder in the second degree; manslaughter in the fourth degree; what testimony must be excluded in determining the intent with which the act was done; stating the extent of the presumption of innocence; defining a reasonable doubt; and the right of self-defense, if it was found that the deceased was about to do the defendant some bodily harm; and as to the credibility of witnesses and the weight and value to be given their testimony.

Four assignments are urged as constituting error: (1) That, in the absence of testimony to show the character of a dangerous and deadly weapon, in this case a rock, charged in the information to have been used by defendant in striking the fatal blow, an instruction for murder in the second degree was not authorized; (2) that an instruction for manslaughter in the third degree should have been given; (3) that the instruction in regard to self-defense was erroneous; and (4) that the conduct of the prosecuting attorney was prejudicial.

I. Proof of Nature of Weapon.—The testimony showed that the defendant struck the deceased on the back of the head or at the junction of the skull and cervical vertebræ with a rock, which dislocated or broke the neck of the deceased and caused a hemorrhage, from which death immediately ensued. The rock was alleged in the information and the instructions to have been a dangerous and deadly weapon, but it was not described in the testimony, nor was it produced at the trial. This was not such a failure of proof as to constitute error. If it was shown by the testimony that the effect was produced by defendant striking the deceased with the rock from which he died, it was sufficient evidence of the deadly character of the weapon employed. A "deadly weapon" is one by which death would likely be produced when used in the manner in which the testimony shows that it was used in this case. That it was so used was testified to by witnesses, and it does not follow, because its exact dimensions were not described, and there was no direct proof as to its dangerous or deadly character,...