State v. Philpott

• Court: Missouri Supreme Court
• Writing for the Court: KENNISH, J.
• Citation: State v. Philpott, 146 S.W. 1160, 242 Mo. 504 (Mo. 1912)
• Decision Date: 09 May 1912
• Parties: THE STATE v. WILLIAM PHILPOTT, Appellant

146 S.W. 1160

242 Mo. 504

THE STATE v. WILLIAM PHILPOTT, Appellant

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Livingston Circuit Court. -- Hon. A. B. Davis, Judge.

Affirmed.

Scott J. Miller for appellant.

(1) The court committed error in permitting testimony of witnesses used by the State, over the objection of the defendant, to prove the defendant's reputation for morality was bad because the only issue, if competent at all, would be the question of truth and veracity, and not of morality or general worth. State v. Wertz, 195 Mo. 579. (2) At the close of all the testimony, when all the evidence was in and the degree of the crime, if any committed, could be ascertained by the court, the defendant insisted that the court should instruct on murder in the first degree, and first degree alone; that the issue should be defined by the court to first degree murder, second degree murder or manslaughter in the fourth degree. The court overruled the suggestions of the defendant, leaving the three degrees of murder before the jury, but did not instruct on manslaughter in the fourth degree, which, under the testimony in this case, is error. (3) When the jury brought in the verdict, it was rewritten by the court, and the verdict found by the jury was in open court and not in the seclusion of the jury room and was the verdict, as written, of the court and not of the jury. While it might have been the intention of the jury, and probably was, to sentence the defendant to ten years in the penitentiary, yet it was the jury's duty to make the verdict in due form, and not the court's. The court should have sent the jury back to their room with proper instructions. (4) The court should have instructed on manslaughter in the fourth degree. If there ever was a case in this court where manslaughter in the fourth degree was proper, this is one of them. At the close of the case, for some reason, the record does not state the fact as it should, by the insertion of the word "not." The quibbling, at the time, was the request that the court instruct on all the law of the case, and the insistence that the prosecuting attorney, not having elected to stand on murder in the first degree, the court should instruct on manslaughter in the fourth degree and murder in the second degree; and these matters are made points of error in the motion for a new trial, and were specifically called to the court's attention in said motion. State v. Maupin, 196 Mo. 177.

Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.

Where appellant testified in his own behalf, the State can impeach his credibility as a witness by showing his reputation for morality is bad, and it makes no difference whether or not appellant offers testimony sustaining his character. In such case he occupies the same position, as to being impeached and discredited, as any other witness. State v. Priest, 215 Mo. 1.

KENNISH, J. Ferriss, P. J., and Brown, J., concur.

OPINION

KENNISH, J.

This is an appeal from the circuit court of Livingston county. Appellant, William Philpott, at the January term, 1910, of said circuit court, was convicted of murder in the second degree for having killed John Shellhorn by stabbing him in the neck with a butcher knife. The jury assessed his punishment at imprisonment in the penitentiary for a term of ten years, and from the sentence pronounced and judgment entered he appealed to this court.

The State introduced evidence tending to show the following facts:

The defendant, a man sixty-four years of age at the time of the homicide, lived in the town of Dawn in Livingston county, where he was engaged in the business of running a meat market. The deceased, who was thirty-five years of age, worked for a man named Lionberger, who had a restaurant in Dawn. Deceased was a much larger and stronger man than the defendant. On the 25th of December, 1909, during the forenoon, defendant and deceased, while in Lionberger's restaurant, had a quarrel about a bottle of whiskey. Defendant left the restaurant, and went to his meat shop. Between eleven and twelve o'clock that morning deceased went to defendant's meat shop to buy a soup bone. A quarrel ensued over the price. Two witnesses were present during a part of the quarrel, but, according to their testimony, neither of them was an eye witness to the homicide. They both testified, however, that the deceased was intoxicated when they saw him at defendant's place of business. One of them testified that defendant asked him to take deceased out of his shop. The witness endeavored to persuade deceased to leave the shop with him, but deceased refused to go. About twelve o'clock, and after both witnesses had left the shop, defendant went to the post-office and also to a store and requested several men to go to his shop and see about Shellhorn, telling them that he thought he had killed him. Two men went to defendant's shop and found Shellhorn lying on the floor dead. He had been killed by a knife stab that severed the jugular vein.

The witness who was last to leave the defendant's shop while the two men were quarrelling, gave a very meagre and unsatisfactory account of what he observed. He testified that while the men were quarreling he started to leave. When he reached the door, and while his back was to them, he heard a noise as if they were scuffling and looking back saw them facing each other and saw blood on the floor. He went out of the room, walked down the street and said nothing about what he had seen until after the defendant had appeared on the street and requested the men he met to go to his shop and see about Shellhorn.

The defendant testified in his own behalf. He gave the following version of the killing. After the quarrel in the early forenoon deceased came to his shop to buy a soup bone. He cut and wrapped up the bone and told deceased the price of it was twenty-five cents. Deceased, with an oath, exclaimed that the price was too high, became very much enraged and refused to receive his purchase. He repeatedly cursed the defendant, using numerous vile epithets. Defendant ordered him out of the shop and requested a witness who was present to take him out, but deceased refused to leave. Defendant, with a butcher knife in his hand, went to a table on which there was a hind quarter of beef and began to cut out a kidney. While he was so engaged deceased assaulted him by striking him on the back of the head with an iron stovelid lifter. He ran to the rear door of his shop and attempted to escape. Deceased followed him and continued striking him with the lidlifter, when he threw up his hand in which he held the knife, in an attempt to ward off the blows of deceased, and in so doing struck deceased with the knife and inflicted the fatal wound.

The State, in rebuttal, offered testimony tending to show that the defendant bore a bad reputation for morality in the community in which he lived. The cross-examination of the State's witness in rebuttal developed the fact that the deceased also had a bad reputation for morality.

The court submitted the case to the jury under instructions which authorized a conviction of murder in the first or second degree, or an acquittal on the ground of self-defense or on the theory of an accidental killing.

The jury returned into court the following verdict: "We, the jury, find the defendant guilty as charged in the indictment of murder in the second degree and assess his punishment at ten years in the penitentiary." When the verdict was read the court, with the consent of the jury, corrected the form of the verdict so that it read as follows: "We, the jury, find the defendant guilty as charged in the indictment of murder in the second degree and assess his punishment by imprisonment in the penitentiary for a term of ten years." The verdict as corrected was read to the jury and upon a poll of the jury each member thereof said that the verdict as corrected was his verdict.

I. Appellant contends that the court committed error in permitting the State, after the defendant had testified as a witness in his own behalf, to introduce testimony in rebuttal showing that defendant's reputation for morality was bad. Appellant's claim is that the inquiry should have been limited to the question of his reputation for truth and veracity. We cannot give our assent to this contention. It is the law of this State that when a defendant in a criminal case goes upon...