State v. Shoultz

• Decision Date: 31 March 1857
• Citation: 25 Mo. 128
• Parties: THE STATE, Respondent, v. SHOULTZ, Appellant.
• Court: Missouri Supreme Court

25 Mo. 128

THE STATE, Respondent,

v.SHOULTZ, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. S., a cripple, deformed from infancy, was indicted for murder; held, that evidence was inadmissible in his behalf to show that by reason of his weak and crippled condition of body he was rendered nervous and peculiarly sensitive to fear from external violence.

2 Where one willfully shoots and kills another in malice, it is murder in the first degree, and not murder in the second degree.

Appeal from St. Louis Criminal Court.

Cline & Jamison, for appellant.

I. The evidence offered by defendant was clearly competent, and should have been admitted. The condition of Shoultz's mind was an important consideration for the jury in passing upon his guilt or innocence. The evidence shows him to be a weak and crippled boy; deformed from his infancy; always sick and often unable to walk or help himself, and of so frail a fabric that an ordinary blow from the fist of the deceased would have been sufficient to take his life. This had a powerful effect upon his mind, and when he saw his hand raised against him, a sense of his own weakness, heightened by the pain of disease, which had preyed upon him from his birth, moved him to do that for his own protection which is now charged to be murder in the first degree. If the defendant really and honestly supposed deceased intended to do him some great personal injury, and that it was about to fall upon him, although he had no reason for thus supposing, yet if he were to show that his belief arose from his peculiar constitution and character, or from nervousness or cowardice, caused by his crippled condition, the homicide in the case would not have amounted to murder, but would have been manslaughter in the fourth degree under our statute. (Whart. on Hom. 212-6; Whart. Crim. Law, 463, note; 3 Stew. & Porter, 315.)

II. The fifth instruction given was erroneous. If the jury should believe that deceased and defendant were of equal strength, then the provocation referred to in this instruction would not extenuate the crime to manslaughter. The same principle should apply to cases where parties are equal in strength as where they are unequal. The instruction also cuts off every defense or palliation which might arise either from passion or self-defense, where the defendant was the first trespasser in a difficulty which resulted in death. No declining the combat, no retreating to the wall or ditch, would be sufficient to protect the accused from the penalty of death; if he commenced the difficulty, it matters not, under this instruction, how hot the contest may be waged, or how great the peril of the first trespasser might become, yet he is left by this instruction without any means of defense, and can alone seek protection by flight. If the instruction had pursued the language of the law by stating that the provocation must be sought by the deceased in order to destroy its legal effect in his defense, then the jury would have understood its import, and the appellant would have been left without any reasonable objection to its having been given. The sixth and seventh instructions are objectionable for the same reasons.

III. The eleventh is erroneous. This instruction takes from the jury all consideration of murder in the second degree in every case where death ensues from an intentional act of violence, and unless there be a lawful provocation and a heat of passion, or unless it be done in self-defense, the perpetrator is pronounced guilty of murder in the first degree. The cases of State v. Dunn, 18 Mo. 419; State v. Jennings, 18 Mo. 433, certainly carried the doctrine to its fullest extent. Here a willful act is held to satisfy a statute which requires the killing to be done with deliberation and premeditation. (See Whart. Crim. Law, 439; Copeland v. State, 7 Hump. 479; Whart. on Hom. 168.)

IV. The instructions asked by defendant were improperly refused. (See Granger v. The State, 5 Yerg. 459; State v. Scott, 4 Ired. 409; Whart. C. L. 463; 19 Wend. 569; Shorter v. People, 2 Comst. 197.

C. G. Mauro (circuit attorney), for respondent, cited Whart. on Hom. 215, 197; People v. Clark, 3 Seld. 393; Beauchamp v. The State, 6 Blackf. 310; Mitchum v. The State, 11 Geor. 628; The State v. Tilley, 3 Ired. 424; People v. Shorter, 4 Barb. S. C. 460; 2 Comst. 193.

RYLAND, Judge, delivered the opinion of the court.

Israel Shoultz was indicted at the July term, A. D. 1856, of the St. Louis Criminal Court, for the murder of Henry Inkamp. At the January term, 1857, he was tried and convicted of murder in the first degree. He moved for a new trial; his motion was overruled, and he brings the case here by appeal.

The record shows the following statement of the facts of the case: Dr. William Taussig, produced and sworn on the part of the State, deposes and says: I am a physician by profession, and reside in Carondelet, St. Louis county. I know defendant, Shoultz--ever since I resided there--and was also acquainted with Henry Inkamp, the deceased. I was called to see deceased after he was shot; saw a wound on his left side; it was caused by a ball, shot from a gun or pistol, which had passed through his body and came out on his right side, or was protruded through the skin. I took the ball out, and directed some treatment. He died upon Thursday morning from the effect of the shot. I officiated at the post mortem examination. Upon opening the deceased's body, I found that the ball had struck the eighth rib, glanced downward, penetrated the peritoneal coat of the stomach, grazed the walls of the stomach, penetrated the diaphragm, grazed the pleura, pierced the surrounding ligaments of the lungs, and then passed out between the eighth and ninth ribs. This is all I know of the cause. [Cross-examined.] Deceased was a heavy-set, strong man; the stoutest man I ever saw. Saw no other wounds upon him, except a cut on his right hand; do not know what kind of a cut it was; it was slight, however. Shoultz is a cripple; he has the curvature of the spine, and, from his smallness of stature, should suppose he has had it from his infancy.

Dr. Ashbel W. Webster, called and sworn on the part of the State, deposes and says as follows, to-wit: I was called upon to attend deceased. He was at the drinking-house of Stine, in Carondelet; it was sometime in the month of…., 1856; saw a cut on his hand; saw the shot wound spoken of by Dr. Taussig. This caused his death. He died in this county, in Carondelet, next day. I knew nothing more of the matter than what has been spoken of by Dr. Taussig.

Michael Conrad, sworn on the part of the State, deposes and says: I knew defendant and deceased also. I saw deceased the day he was shot. It was sometime in the summer in 1856; do not recollect the month or the day of the month. He was at my house on the day he was shot. He was there about three hours. Defendant was passing in the middle of the street in his buggy. Deceased called him off as he was passing. This was one hour before sundown. Defendant got off of his buggy and came in the bar-room, and asked deceased what he stopped him for. Deceased asked him, “Do you know of any one who upset my carts and wheelbarrows at the blacksmith's shop on the night of Joseph Shoultz's ball?” Defendant said, “You might as well accuse me of it, as it took place on the night of the ball.” Deceased said he merely wished to know if he knew of any one who did it. They got into a dispute, and some high words passed. Defendant said he had something against him (the deceased), anyhow. They talked pretty loud in a quarreling way. The young man wanted to fight the deceased; and when they got outside they still talked loud, but soon made it up, and came in and took a drink. Defendant did nothing to Inkamp, but he said half a dozen times he wanted to fight him. Deceased said he did not wish to have anything to do with him; to keep away from him. They were together about twenty-five minutes; made friends; came in; shook hands and drank. I think Shoultz paid for the liquor. After this Shoultz started off in his wagon. Deceased was standing in the door, or in front of it, on the pavement, when he called Shoultz in. It was done in a friendly way. He was in a laughing way when he spoke to him about upsetting the wagons, etc. Shoultz got mad, and said, “You might as well accuse me of doing it.” Deceased did not get mad then, nor did he get mad at all. Shoultz remained twenty-five or thirty minutes. I saw deceased on the second night after his being shot. I remained with him until four o'clock in the morning, and was at his funeral. I am not certain that I saw defendant on that evening again. I was not present at the difficulty which resulted in his shooting Inkamp. [Cross-examined by defendant's counsel.] Inkamp did not get mad at all. Shoultz was in the …. and and treated. I told Inkamp that he would not shoe his mare because he did not send the money, but that it made no difference, as he had sent her to St. Louis …. Gamache to be shod. Deceased called Shoultz off his wagon. He was going past the house in the direction of his home. Deceased was a blacksmith by trade, and a very stout man--more so than any one in this house. He was not born in this country. He was not a Frenchman. He was a German.

Charles Ahlig, sworn on the part of the State, says: I was present at the time Inkamp was shot. It was on the evening of the 9th of June, 1856, at Mr. Stine's bar-room, in Carondelet. I went down there at 5 o'clock P. M., or a little afterwards, with soda, and to make a settlement; saw defendant and deceased standing near the counter talking with each other. I heard some words, but as it did not concern me I paid but little attention to it. They then came pretty near a fight. I then stepped up to the bar; was there five minutes, and Shoultz shot Inkamp. I heard many words, but have forgotten them. I heard deceased say it was not right for Shoultz to talk bad of him behind...