State v. Schieller
| Decision Date | 19 November 1895 |
| Citation | 32 S.W. 976,130 Mo. 510 |
| Parties | The State v. Schieller, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.
Affirmed.
Chas T. Noland for appellant.
(1) All the testimony showed either murder in the first degree, or manslaughter in the third or fourth degrees. The fact that the indictment charged murder in the second degree, did not warrant the court to instruct for that grade of homicide unless there was evidence tending to sustain it. Instructions should be confined to the case made out by the testimony. State v. Lewis, 118 Mo. 79; State v. Brady, 87 Mo. 142; State v. Wilson, 88 Mo. 13. The indictment did not permit an instruction for murder in the first degree, and the evidence did not permit an instruction for the second degree; but both the indictment and the evidence warranted instructions for manslaughter. (2) The instructions do not properly define murder in the second degree, and the jurors could not have had any clear perception of the crime of which they convicted appellant. The instructions say: "Premeditation means thought of beforehand for any length of time however short;" and that's all that is said in definition of that distinguishing element of murder in the second degree. State v. Wieners, 66 Mo. 13; State v. Curtis, 70 Mo. 594; State v. Sharp, 71 Mo. 218; State v. Robinson, 73 Mo. 306. (3) It was error to instruct under the facts in this case that the law presumed murder in the second degree, from the fact of intentionally killing with a deadly weapon. State v. Wing, 66 Mo. 181. (4) The court erred in not instructing for manslaughter in third degree. The aforesaid instructions, recognized the fact that there was evidence tending to show that the homicide was done with a dangerous weapon and was unintentional, that is to say, without a design to kill. Under such circumstances section 3471 requires an instruction for manslaughter in third degree. State v. Elliott, 98 Mo. 150.
R. F. Walker, attorney general, and C. O. Bishop for the state.
(1) A number of the grounds assigned for reversal in the motion for new trial are not sustained by the record, and hence will not be considered here. State v. Foster, 115 Mo. 448; State v. Welsor, 117 Mo. 570; State v. Cantlin, 118 Mo. 100. First. There is no affidavit of newly discovered evidence. Second. There is no evidence of any misconduct on the part of the jury. Third. There was no testimony admitted on the part of the state over the objection of appellant to which exceptions were saved. (2) The state is not required to call as witnesses all persons who were present at a homicide, nor even all of those whose names are indorsed upon the indictment. State v. Kilgore, 70 Mo. 546; State v. Eaton, 75 Mo. 586; State v. Johnson, 76 Mo. 121. (3) The instructions fully covered the law of the case as developed by the evidence, defined in often approved language the offenses which that evidence tended to show, and were correct in every particular. As to those given at appellant's instance, even if erroneous, he can not now be heard to complain. R. S. 1889, sec. 4115.
The defendant appeals from a judgment on a verdict of guilty of murder in the second degree, his punishment being assessed at ten years in the penitentiary. The indictment charges the murder to have been done with a knife, and that defendant did the stabbing "feloniously, willfully and of his malice aforethought."
The testimony in this cause is excessively voluminous, covering over three hundred and twenty pages, most of them typewritten, showing very plainly the abuses which stenography has introduced into our practice.
Going through the record, however, we find the substance of the evidence is the following: The person killed was named August Kanker, and young man twenty-three years old, who on January 3, 1893, married Mary Scheller, a young woman not quite nineteen, to whom he had been engaged about a year. Pending their engagement, Miss Scheller resided on Second and Miller streets. The defendant visited in that neighborhood, became acquainted with her and proffered her some attentions. Shortly before the marriage, on one Sunday evening, he met her and proposed a walk with her. She declined. Whereupon he said to her:
On the night of Saturday, May 13, 1893, there was a party given in honor of Mrs. Kanker's father's birthday, at his residence, 1811 South Second street, in St. Louis, and the deceased and his wife were there. The family lived upon the second floor of a tenement house, occupying two rooms, a hall and a porch. The party was prolonged into the morning of Sunday, May 14. The defendant was not invited, but came to the party with some young men from North St. Louis, where he resided, among whom were Charles and John Meixner, cousins of Mrs. Kanker, nephews of her mother. Until that evening, Mrs. Kanker had not met defendant since he made the threatening remarks above quoted. She spoke to him pleasantly, but he made no response. He was, however, very attentive to her husband, the deceased, following him around, inviting him to sing with him, and making himself very agreeable. Early on Sunday morning, about 1 o'clock, or half past, the musicians who had been furnishing entertainment for the party withdrew, and soon after defendant became turbulent and offensive, criticizing the refreshments, acting in a rude and boisterous manner, "and a kind of sassing everybody." Presently a fight began between some young men over the comparative prowess of the "North St. Louis" and the "South St. Louis" boys.
The deceased had been taken ill and was sitting out on a porch upon the stairway leading to the third floor with his wife, when the trouble began; he had commenced to vomit, and she started to get a vessel for him when she discovered through a window a difficulty within and gave an alarm; deceased got up and went into the room and undertook to separate two of the combatants, his wife's brother and her cousin, taking hold of each of them by the shoulder, and saying something to them to the effect that relatives ought not to fight with each other. Just then, the defendant, who was engaged...
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