State v. Spencer

• Decision Date: 12 February 1901
• Citation: 60 S.W. 1048,160 Mo. 118
• Parties: STATE v. SPENCER.
• Court: Missouri Supreme Court

60 S.W. 1048

160 Mo. 118

STATE v. SPENCER.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

HOMICIDE — THREATS.

Threats previously made by deceased against defendant will not palliate or excuse the homicide where defendant sought him, and he was making no effort to execute any threats, and was not assaulting or attempting to assault defendant, or making any hostile or apparently hostile demonstration towards him.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Edgar Spencer was convicted of murder, and appeals. Affirmed.

P. H. Cullen and W. W. Botts, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, J.

The defendant was indicted, tried, and convicted of murder in the second degree in the Audrain circuit court. From the conviction he appeals.

The evidence establishes that both the defendant and Benjamin Eddelman resided in Vandalia, Audrain county, on December 25, 1899. Eddelman was a night watch. The city paid him $25 a month, and the merchants and others supplemented his salary. He was about 39 years old. The defendant was 25 years old. John Adkins kept a saloon in Vandalia. He drew the color line by having separate bars for the whites and negroes who patronized him. About noon on Christmas day defendant had been drinking, and made a disturbance in the saloon. He had pulled his coat, and, it would seem, had started to make an assault with a knife on Eddelman, who was standing behind the bar. Eddelman drew a pistol, which it afterwards appeared was empty, and ordered defendant to drop his knife. Thereupon other parties intervened, and took defendant out of the saloon. After leaving the saloon, the defendant went to a livery stable close by. The mayor of the town, Mr. Smellzer, went to him, and warned him that he must not create any disturbance, and he expressed a willingness to fight the mayor, who told him he did not want to fight him, but would have no trouble. Defendant then said he had had a racket in the saloon, and Eddelman had drawn his gun on him. The mayor told him he must be quiet; that Eddelman had gone home; whereupon defendant said, "I will go down after him." Defendant was in a bad humor. After dinner defendant came to the saloon again, and was standing in front of it, and Eddelman, the deceased, was in front of a meat market just across an alley. He was talking to Eddelman, whereupon the mayor again told defendant he must keep quiet, or he would have to lock him up, whereupon deceased said to the mayor: "John, lock him up. I don't want any more trouble with him this day." Defendant was very mad. Two of defendant's friends then asked permission to take care of him, and started off with him, and they went over to the hotel. About 2 o'clock Eddelman, the night watch, was in the saloon, standing near the corner of the counter and the ice chest. Defendant again appeared at the saloon, armed with a revolver. He came in the front door, and started back into the middle room, when his friend Hesser put his hands across the door to stop him, whereupon Adkins, the proprietor of the house, said to him, "You can't come in here." He said he wanted to see Adkins. Defendant came up to Adkins, and said, "John, didn't you call Ben Eddelman in here to put me out?" and Adkins told him he did not want any disturbance. If there was, he would put him out. He promised there should be no trouble. He then passed into the room where Eddelman was standing. The defendant made his way to Eddelman, and several of the eyewitnesses testified that as soon as he got in reach of him he grabbed deceased by the throat with his left hand and simultaneously remarked, "Now I have got you." He held his pistol in his right hand over Eddelman's head and fired, the shot entering about two inches to the rear and above the ear, and penetrating the brain. Eddelman sank in his tracks, and Adkins ran to him, and laid him out on the floor. Defendant backed out of the saloon, and ran south. He was apprehended by the mayor, and locked up in the calaboose. There was evidence of threats made by Eddelman against deceased, and some very slight evidence that deceased was making some demonstration against defendant when defendant grappled with him and shot him.

The circuit court gave elaborate instructions on murder in the first and second degrees, and manslaughter in the fourth degree, and self-defense. Upon an inspection of the record, we discover no error whatever in the record proper nor in the admission or rejection of evidence. The instructions are not criticised save one, which is as follows: "The court instructs the jury that the evidence of threats made by deceased against defendant was admitted in the case solely because there was...