State v. Myers

• Decision Date: 29 June 1909
• Citation: 121 S.W. 131,221 Mo. 598
• Parties: STATE v. MYERS.
• Court: Missouri Supreme Court

121 S.W. 131

221 Mo. 598

STATE v. MYERS.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

1. WITNESSES (§ 277) — CROSS-EXAMINATION.

Where, on a trial for murder, defendant explained his possession of a pistol on the evening of the difficulty by stating that his wife had said to him that she thought there was somebody in the back yard, and that he had better see who it was, and that she advised him to take a pistol for his defense, there was no impropriety in permitting the prosecuting attorney, on cross-examination, to ask defendant whether he was in fact married.

2. WITNESSES (§ 268) — CROSS-EXAMINATION — SCOPE.

Cross-examination is not confined to a mere categorical review of the matters stated in direct examination, but is a proper effort to test the truth thereof.

3. HOMICIDE (§ 308) — INSTRUCTIONS — "MURDER IN THE SECOND DEGREE" — "WILLFULLY" — "PREMEDITATEDLY" — "MALICE" — "MALICE AFORETHOUGHT."

An instruction defining "murder in the second degree" as the killing of a human being "willfully, premeditatedly and with malice aforethought," and then defining "willfully" to mean intentionally, not by accident, "premeditatedly" to mean thought of beforehand for any length of time, however short, and stating that "malice" did not mean mere hatred or dislike, but that condition of mind which prompted a person to intentionally take the life of another, and that "malice aforethought" meant malice with premeditation, properly defined "murder in the second degree."

4. HOMICIDE (§ 309) — INSTRUCTIONS — GRADE OF OFFENSE — MANSLAUGHTER.

On a trial for murder, defendant stated that he shot decedent to protect his own life. Defendant testified that he met decedent in a saloon, where decedent was bartender, and that decedent asked him if he had his key, and that he said that he had and would give it to decedent

when he got ready, and that at that decedent said that, if defendant was looking for trouble, he would get all he wanted, and that decedent stepped forward, leaning under the bar, and told defendant to travel, applying a vile epithet, and that as he said that decedent shot him. Defendant admitted that he had previously testified that, when decedent was reaching under the bar, just before the shooting, and as he (defendant) pulled his revolver, decedent "ducked" behind the bar and was out of sight when defendant reached over and fired. Held, that the evidence furnished no sufficient basis for an instruction on manslaughter in the fourth degree, but made out a case either of murder in the second degree or self-defense.

5. CRIMINAL LAW (§ 747) — CONFLICTING EVIDENCE — QUESTIONS FOR JURY.

It is the exclusive province of the jury to pass upon conflicting evidence.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Frank Myers was convicted of murder in the second degree, and he appeals. Affirmed.

The defendant has brought this cause to this court by appeal from a judgment of the circuit court of the city of St. Louis, convicting him of murder in the second degree.

On the 6th day of November, 1907, there was filed in the circuit court of the city of St. Louis an information for murder in the second degree, duly verified by the assistant circuit attorney, charging the defendant, Frank Myers, with having killed Garrell Burroughs. This offense was charged to have been committed on October 5, 1907. Defendant was arraigned upon the charge and entered his plea of not guilty January 13, 1908. A jury was duly impaneled and sworn, and the trial upon the evidence was then proceeded with.

The testimony developed upon the trial tends substantially to show the following state of facts: That the defendant had been for some years engaged in conducting what was known as the "Western Hotel" on Third and Carr streets, in St. Louis, Mo. That deceased, Garrell Burroughs, had roomed at defendant's hotel "off and on probably for two years," and had roomed there during the months immediately preceding his death until the evening before that event occurred. On that evening he left defendant's place; but the evidence gives no reason for his removal. Burroughs had been a waiter in a restaurant at 1111 North Third street in St. Louis until about a month before the shooting. During that month he had beer working as barkeeper in the saloon conducted by Louis Fisher at the corner of Broadway and Washington, in St. Louis, and was on duty at that place on the night of Saturday, October 5, 1907. According to the evidence there had been no previous ill feeling between deceased and defendant, unless it is to be inferred from the fact that defendant had retained the key of Burroughs' trunk when the latter removed from the Western Hotel, and the fact that the conversation immediately preceding the firing of the fatal shot is a little hard to explain, unless on the theory of a previous misunderstanding. At the time of the shooting, there was in the saloon Myers, the defendant, Burroughs, the deceased, Clyde Spear, another barkeeper, P. J. Tillman, George King, Michael Brennan, William Knox, and two unidentified men. The two last and King did not testify. At about 7:30 p. m. on the day mentioned, Tillman, Brennan, and King were in the saloon where the killing took place, and were engaged in disposing of their second round of drinks, when the defendant, Myers, entered the place. The latter invited the three to drink with him. Spear was serving the drinks, and Burroughs, the deceased, until this juncture, had been seated behind and near the north end of the bar. Knox entered the saloon about this time by the side door, and defendant amended his invitation to drink so as to include Knox. At this time, or a moment previous, according to witness Tillman's version, deceased approached the center of the bar where defendant was standing, the bar being between the two, and said to defendant, "Have you got my keys?" Defendant answered, "Yes," and deceased said, "Let me have them," to which defendant rejoined, "If you want them, come and get them." Burroughs then said something in an angry, mumbling tone, which witness did not understand, threw off his apron, and reached down under the bar, leaning over or stooping so that his whole body was below the level of the bar rail. Defendant instantly drew his pistol, stepped up to the bar, reached over it, and fired one shot downward. Spear's account of the tragedy was: That Myers and Burroughs were talking in a low voice, and the only portion of the conversation he heard was Myer's remark that "the only way you can get it is to take it"; that he, the witness, turned to draw some beer and then heard the shot. The tone used in the conversation did not seem angry, according to this witness. Michael Brennan's version is that Burroughs said to defendant, "You have got my key." "So Myers said he had it, or something to that effect, and I turned around speaking to my friend. Q. What did you say Myers said? A. Myers said he had the key. So Garrell Burroughs asked him for it, and he said he wouldn't give it to him. Q. He wouldn't? A. Yes, sir; that is all I heard. I turned around to speak to my friend, and so they had some argument between the two of them. There was some altercation between them, which made hot words. Whatever they were, I couldn't understand, and Garrell Burroughs, the deceased said something in a threatening attitude and went down, apparently reaching for something behind the bar, and just as I turned around Frank Myers pulled his revolver out of his pocket and shot the man behind the bar." In explaining Burroughs' "threatening attitude," the witness declared that "he [Burroughs] appeared `sore,'" and "didn't have a pleasing face on him." This witness also testified that, just after Burroughs "went under the bar," defendant stepped up, leaned over the bar, and shot him.

The deceased had no weapon on his person when he was killed, and neither he nor defendant made any other demonstration than detailed above. Only one shot was fired, and it proved almost instantly fatal; Burroughs never having regained consciousness, dying in the hallway to which he had been removed immediately after the shooting. The post mortem developed that the bullet entered the body of deceased at the lower angle of the right shoulder blade, pierced both lungs and the aorta, and lodged on the left side of the body between the fifth and sixth ribs, ranging slightly upward and forward. The deceased was a young man about 23 or 24 years old. After shooting Burroughs, defendant left the saloon and returned to the Western Hotel, where he was arrested soon thereafter. The defendant had concealed the pistol with which Burroughs was shot under some steps in the alley back of the hotel. On being asked by the officers where the weapon was, he accompanied them to the alley, secured and delivered it to them. Defendant's counsel was at some pains to lay a foundation for showing discrepancies between the testimony of witness Tillman on the trial in the circuit court, and that given by him in the court of general sessions on the preliminary; but the proof of the testimony given by this witness in the last-mentioned proceeding was not made.

On behalf of defendant, William Knox testified: That he had resided at Myer's hotel nearly three years, and was residing there at the time of the trial; that he and Burroughs had been roommates; that he was in the saloon at Broadway and Wash streets at the time Burroughs was shot on the evening of Saturday, October 5, 1907; that on entering he said to defendant, who was at the bar with others, "Myers, who is doing this?" The witness then gave this description of the occurrence: "And he asked me what I was going to have, I said, `Beer,' and I walked towards the bar. As I did, Burroughs came forward where the cash register was, towards Myers, and he said: `God damn you, have you got anything coming to you? If you came looking for trouble, you are going to get what is coming to...