State v. Short

• Decision Date: 22 June 1908
• Docket Number: 17,031
• Court: Louisiana Supreme Court
• Parties: STATE v. SHORT

46 So. 1003

121 La. 1023

STATE v. SHORT

No. 17,031

Supreme Court of Louisiana

June 22, 1908

Rehearing Denied June 29, 1908.

Appeal from First Judicial District Court, Parish of Caddo: Thomas Fletcher Bell, Judge.

S. B Short was convicted of manslaughter, and appeals. Affirmed.

See 45 So. 98, 120 La. 187.

William Alexander Mabry, Henry T. Liverman, and Ivey, Hill &amp Greenwood, for appellant.

Walter Guion, Atty. Gen., and Frank J. Looney, Acting Dist. Atty (Lewis Guion and Ruffin Golson Pleasant, of counsel), for the State.

PROVOSTY, J. MONROE, J., concurs.

OPINION

PROVOSTY, J.

Defendant was tried for murder, and convicted of manslaughter, with recommendation to the mercy of the court. On appeal, the judgment was set aside, and the case remanded for another trial. He was again found guilty of manslaughter, on the second trial, and he has again appealed.

The deceased, Lee Howard, was connected in some way, as part owner, or otherwise, with the Palace Saloon in the city of Shreveport. He occupied a room in the rear of the barroom. For some reason not very clearly explained, he harbored resentment against the defendant. In the early part of the night on which he met his death at the hands of defendant, he used abusive language to defendant, without provocation, and, upon being paid in kind, struck him in the face, knocking him down, so that he fell through the swinging doors, upon the sidewalk outside, breaking the glass of the doors in his course. Defendant got up, his face bruised and bleeding, and went to the back part of the barroom to wash his face. Walter Howard, brother of Lee Howard, went with him to assist him. While they were so engaged, Lee Howard, who was standing by the bar, spoke to defendant, proposing "to make friends; said he had no ill feeling, and would call everything off, and wanted to take a drink and shake hands." Defendant made no answer, whereupon Howard came to where defendant was, and applied a vile epithet to him, and brandished an open knife, saying to him, "The next time we meet, this will do the work." Nothing further occurred on this occasion. Defendant went his way out of the barroom. He is a resident of Texas, and was a stranger in Shreveport. Howard was drinking heavily, and was a quarrelsome and notoriously dangerous man in his cups, and is described as a man "of quick action"; that is to say, capable of swift movement.

The next we hear of defendant is about two hours later, through the testimony of one Blanche Myers, who says:

"It was at Annie McCune's. He came down to the house. Did not stay long. Went up stairs to get a drink of water, and went in my room and sat down a little while, and when he got up I seen something under his coat, and I asked him what it was, and he laughed and said. 'Nothing particular,' something that he might have to use before morning, but he hoped not."

About two hours thereafter, and four or five minutes before the homicide, defendant came into the Palace Saloon, and called for a drink of whisky. The bartender set the whisky and the water on the bar. Defendant "looked around in the saloon and looked around in the poker room," and asked where was Lee Howard. On being told that Lee Howard had gone to Chamberlain's Cafe to get a lunch, and would be back in a few minutes, he took his drink, and, leaving 15 cents on the counter, walked out. His manner indicated excitement. He went straight to Chamberlain's Cafe, which is in the same block, only about 150 feet from the Palace Saloon, and there he met Lee Howard, and the homicide occurred.

The person entering Chamberlain's Cafe has at his right, as he steps in, a cigar stand, and at his left a long lunch counter. This stand and this lunch counter are six or seven feet from the door, and about the same distance from each other. The lunch counter extends to the back part of the room. How long the cigar stand is the record does not show. Alongside of the lunch counter are stools upon which the guests sit. The passage being so narrow, the person entering must necessarily pass close to the row of stools.

As defendant entered, Lee Howard was seated on the nearest stool, with his face towards the counter, and therefore with his left side toward the door, and was eating his lunch. The witness Wright was seated next to him at his right, but was through eating his lunch, and had turned his back to the counter. The witness Allen was on the third or fourth stool from Wright. These two are the only witnesses who saw and can testify to the beginning of the difficulty. Both were called by defendant, but the witness Wright had appeared for the state on the former trial.

Wright says:

"Short came in. I called him 'Slim.' I says: 'Lee, here comes Slim.' Howard immediately wheeled around on the stool, so his back was to the counter. About that time Slim was up to where we were sitting, advancing. At that moment, Lee Howard put out his hand, and says: 'Hello, Slim, let's shake hands and be friends.' And Slim stopped, and said: 'I do not care to shake hands with you.' And as he made that remark, Howard says: 'You intend to carry the trouble of this evening further. You are a damn bitch.' As he made this remark, he reached with his right hand and felt of Slim's right hand, and says: 'You have got a knife.' While doing this, he was reaching with his left hand back for the syrup pitcher. Right then and there Short made a move to get a gun. Howard made the remark to him: 'You have got a gun.' When Howard got the syrup pitcher in his hand, he hit him with it on the side of the head, over the eye. Short's right hand, when Howard was feeling of it, was hanging down. Short opened his hand and said he had no knife. Howard's reaching for the syrup pitcher with his left hand and Short's movement to draw a weapon were virtually simultaneous, the same instant. The struggle began at once. In trying to get away, I fell to the floor and was trying to get away as rapidly as possible, and just as I went to get on my feet the shot was fired. Q. Mr. Wright, do you recall whether or not, after Lee Howard said to defendant, addressed those remarks to him, whether or not Mr. Short, a moment or two after that, seemed to be backing back, or going towards the door? A. Back, back towards the door. Q. Can you recall now what Howard said to him about that time? A. He said he knew he had a gun and was not afraid of his God damn gun."

The witness Allen says that:

"Just as Short stepped in, he leaned up against the cigar stand, and was resting with his arms on the cigar case when Howard began to talk. Howard said: 'Let's call this matter off,' and Short says: 'No, we better go on like we are. You attend to your business, and I will attend to mine.' Then Howard says: 'Why will you not do it.' And Short says: 'I have a reason.' Howard says: 'What is your reason?' By that time, Howard cursed Short for a damn son of a bitch, and reached over and grabbed at a tooth pick stand, and threw it at Short. Then they clinched. Short knocked Howard down twice, and as Howard was getting up, Short reached in his hip pocket and got his gun. Just then I ran upstairs and heard the gun."

Other witnesses testified but not to the beginning of the difficulty. This other evidence was to the effect that when the fatal shot was fired Howard had fallen and was on the floor; that defendant walked around him, from his feet to his head, and fired into him.

The charge of the court, leaving out the mere formal part, was as follows:

"(1) Mere threats to kill or do great bodily harm, though communicated to the party threatened, will not justify an assault on the party uttering the threats, in the absence of some overt act by the party threatened, evincing a purpose to make good his threats.

"(2) The party thus threatened is not required to await the actual delivery of the blow. Any overt act, such as drawing a weapon, evincing a purpose to strike or use the weapon, will justify the person thus menaced in acting, without awaiting the actual delivery of the blow. The refusal to acknowledge an introduction or to shake hands with a person offering to do so may be very offensive to the victim of such breaches of social amenity, still these breaches do not constitute a legal provocation for a blow or assault.

"(3) A person assaulted has the right of defending himself repelling force with force as far as it may reasonably appear to him to be necessary to protect his life, or his body, from great harm. The danger to his life or person may not be real. The law is that if a person is assaulted in such a way as to produce in the mind of a reasonable person a belief that he is in actual danger of losing his life, or of suffering great bodily harm, he will be justified in defending himself. Although the danger be not real, but only apparent, such a person will not be held responsible criminally if he acts in self-defense, from real and honest conviction as to the character of the danger, induced by reasonable evidence, although he may be mistaken as to the extent of the actual danger.

"(4) But it is well settled in law that the defendant cannot avail himself of the necessity of that defense, if same was brought about by his own deliberate and lawless acts, or by beginning the fight with the deceased, for the purpose of taking his life, or committing a bodily harm upon him, in which he killed deceased by the use of a deadly weapon, unless the defendant had really and in good faith endeavored to decline any further struggle before the shot was fired.

"(5) Following these precepts of the law, I charge you that if from the evidence, you believe beyond a reasonable doubt that the defendant armed himself with a deadly weapon with the intention of taking life, or of doing great...