State v. Mittner

• Citation: 153 S.W. 1020
• Parties: STATE v. MITTNER.
• Decision Date: 19 February 1913
• Court: Missouri Supreme Court

153 S.W. 1020

STATE v. MITTNER.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. CRIMINAL LAW (§ 1165) — APPEAL — CONVICTION OF LOWER DEGREE OF CRIME THAN WARRANTED BY EVIDENCE — REVIEW.

Under Rev. St. 1909, § 5115, providing that a judgment shall not be disturbed because the evidence tends to show accused guilty of a higher degree of the offense than that of which he was convicted, one convicted of manslaughter may not complain because the evidence justifies a conviction of murder in the second degree.

2. HOMICIDE (§ 255) — EVIDENCE — SUFFICIENCY.

Where accused, having difficulty with decedent, requested his 18 year old son to get his gun, and the son, returning armed, found accused and a servant of decedent fighting, and shot decedent after he had stepped in between the servant and another son of accused armed with a rock, and had walked towards his place of business without saying anything, accused was properly convicted of manslaughter in the second degree, and could have been convicted of murder in the second degree, since his acts caused decedent's death.

3. CRIMINAL LAW (§ 785) — TRIAL — EVIDENCE — QUESTION FOR JURY.

The credibility of the witnesses is for the jury.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

William Mittner was convicted of manslaughter in the second degree, and he appeals. Affirmed.

Convicted of manslaughter in the second degree, defendant appeals from a judgment of the circuit court of St. Francois county sentencing him to serve three years in the state penitentiary.

The evidence discloses a controversy between defendant and one William Iahn about the raffling of a watch. The deceased, William Iahn, kept a saloon in the village of Frankclay, Mo., and employed Tom Gould as his barkeeper. There also resided at the same village the defendant, William Mittner, Sr., and his two sons, Casper, aged 18, and William, Jr., aged 17. The deceased and the barkeeper raffled a watch, at which one Patterson took several tickets or chances. Patterson deposited his tickets with defendant, and then went to another town. One of Patterson's tickets drew the watch, but deceased and his barkeeper refused to deliver the watch to defendant, claiming they had instructions from Patterson to hold it for him. The testimony on the part of the state is to the effect that on the evening of May 4, 1911, several days after the watch raffle, a number of boys were pitching horseshoes on the street near the saloon of deceased. The defendant and his two sons were present. The deceased came out on the porch of his saloon, and defendant was heard to say to him, "You fellows don't want to do what is right about that" — presumably referring to the watch raffle. Deceased replied: "I have told you about that. I won't give the watch to you or any other person until I find out the right one to give it to." The defendant's sons, hearing the quarrel, walked down near their father. Defendant invited deceased to come down off of the porch and fight him. Deceased remarked to defendant, "You are a fool," and walked back into his saloon, whereupon defendant said to his sons, "Boys, go get your gun. He has to go back after something. He won't fight fair." When this statement was made, defendant's son William Mittner, Jr., started home for his gun, and defendant and his other son armed themselves with rocks and remained in front of the saloon. In a very short time deceased and his barkeeper, Gould, came out on the porch. Both were unarmed. Gould stated that he would not give up the watch until he found out who ought to have it. Defendant then challenged both Gould and deceased to a fist fight. Gould accepted the challenge, but deceased remained silent. Defendant asked Gould if he would fight fair, and, upon receiving an affirmative answer, threw down his rock, and after requesting those present to see that he had a fair deal, entered into a fist fight with Gould. This fight progressed vigorously, but without special interest for several minutes, when defendant's son Casper started up towards the combatants with a rock in his hand, whereupon the deceased stepped in between them, and held his open hands out towards Casper Mittner, saying: "Stand back." At this juncture defendant's son William Mittner, Jr., returned with a shotgun, which he pointed at deceased, and threatened to shoot him. Deceased said nothing, but walked towards his saloon. When he stepped up on the porch of his saloon, William Mittner, Jr., shot him in the neck, killing him instantly. Defendant being engaged in a fight with Gould did not notice the arrival of his son, but, when told that his boy had killed Iahn, he quit fighting Gould, and exclaimed: "Oh, my God! Kill me! Oh, my boy; oh, my boy!" At the time he was killed deceased carried no deadly weapons, and there is no evidence that he desired to fight defendant or any one else. Defendant testified that he did not tell his boy to get the gun, and did not want Iahn killed. Other evidence on the part of defendant is only different from that given by the state's witnesses in one material point, to wit, defendant's witnesses testified that they did not hear defendant tell his boys to go after the gun, but that after the first quarrel, when deceased went back into...