State v. Stevens

• Decision Date: 20 December 1888
• Citation: 10 S.W. 172,96 Mo. 637
• Parties: STATE v. STEVENS.
• Court: Missouri Supreme Court

10 S.W. 172

96 Mo. 637

STATE v. STEVENS.

Supreme Court of Missouri.

December 20, 1888.

1. HOMICIDE — SELF-DEFENSE — INSTRUCTIONS.

As, under a plea of not guilty, any number of defenses may be made, whether consistent or not, on a trial for murder evidence of previous threats, made by deceased against defendant, should be admitted, and instructions covering the law of self-defense given, though defendant has testified that the homicide was accidental, and that while he feared deceased, who was advancing on him at the time, he did not shoot him for that reason, and had no cause to shoot him. SHERWOOD, J., dissenting.

2. SAME — INSANITY AS A DEFENSE — INSTRUCTIONS.

Evidence of insanity having been introduced and withdrawn by defendant, it is proper to charge that there is no evidence of insanity on which the jury can acquit.

3. SAME — MURDER — DELIBERATION — INSTRUCTIONS.

Instructions stating that "deliberately" means in cool blood, and not in passion caused by just provocation; that premeditated killing, with malice aforethought, without deliberation, is murder in the second degree; and that if defendant killed deceased while under such a passion, caused by insulting language used by deceased to him, that he was unable rightly to judge the nature and consequences of his act, the homicide was not deliberate, — contain no error of which defendant can complain.

Appeal from criminal court of Jackson county; HENRY P. WHITE, Judge.

Indictment against Jefferson Stevens for the murder of Thomas Kelly. Verdict of guilty of murder in the first degree. Defendant appeals.

B. G. Boone, Atty. Gen., for the State. John F. Waters, F. W. Griffin, and F. M. Hayward, for appellant.

SHERWOOD, J.

The defendant was indicted for murder in the first degree. The charge in the indictment was that he shot and killed one Thomas Kelly in Kansas City, Mo., on the 14th day of July, 1887. In January, 1888, he was tried, convicted as charged, and appealed to this court. The testimony and evidence on the part of the state is substantially as follows:

Defendant was employed in a shooting-gallery in Kansas City, Mo. On the evening of the 14th day of July, 1887, the deceased, with whom the defendant had been acquainted about a week, came to the gallery, and picked up the gun, and took aim as if he was going to fire at the target. Defendant cursed him, and told him to put the gun down. He did so, and went away a few steps, and sat down. Defendant, who had been back near the target, came up nearer the deceased, and they continued to bandy words with each other. Defendant called deceased a son of a bitch, and the latter arose from his seat, and stepped towards defendant, laughing as he did so. The witness who saw this says she thought the deceased was joking the defendant, who got a little angry about it. Just at this juncture the gun in the hands of defendant was discharged by him without being raised to his shoulder, and the deceased was shot through the abdomen, the bullet ranging downward and inward passing through the stomach and the folds of the small intestines below the stomach, thence into the back to the right of the spinal column, where it lodged in the muscles. This wound was necessarily fatal, and the wounded man died from the effects of it at the city hospital in Kansas City at 11 o'clock on the night of July 15, 1887. The deceased was a spare-built, boyish looking man, 22 years of age. The coroner, who is a physician, testified that the gun must have been held, when the fatal shot was fired, so as to cause the ball to range downward and backward. As soon as defendant fired the shot, he ran across to a house on what is called "Bank Street," and, going into a room, locked the door. An officer followed him, and was about to force an entrance into the room, when it was opened by a woman, and the officer found defendant changing his clothes; he having had on a buckskin suit, and was taking it off, and putting on citizens' clothes. Just as the officer stepped into the room, the defendant threw the gun under the bed, and said that he would go along if the officer would protect him from the mob. There was no evidence of any unlawful demonstration by any one against defendant. The officer says, as they were starting to the station-house, he said to defendant, in reference to the shooting, "What in the name of God did you mean?" to which defendant replied, "I meant to kill the son of a bitch. Is he dead?" Defendant, as well as the deceased, were taken to the police station, where defendant was identified by deceased as the man who shot him. The deceased, while at the station, made the following statement: "My name is Tom Kelly. My age is 22 years. My residence is 2710 Market street, St. Louis, Mo. Believing I am about to die, I make this statement on oath: He called me a son of a bitch, and I walked towards him, and he picked up a gun, and said, `I will kill you; you are a son of a bitch;' and then he shot me. He then ran away. The party to whom I refer is named Jeff Stevens. I have known him about one week. He is the man who shot me. In the presence of Capt. Chas. Ditsch and Officer Nichols I fully recognize the man that is held under the charge of shooting as the right man." This was signed and sworn to by deceased, and witnessed by the two officers present.

The testimony of the defendant is the following: "Kelly came there between 5 and 6 o'clock in the evening. He picked up a gun. I was back at the target. He pointed the gun in that direction, and I said: `Lay that gun down.' He said: `I want to shoot.' I told him it was no benefit to me to have him shoot. He laid the gun down, and said to me to go to hell. He said, `Go to hell, you son of a bitch;' and went around, and sat down on a chair or something outside the tent. There was a table close to the end of the counter, on which there was a thirty-eight caliber Remington revolver, belonging to one Denny. Denny was writing a letter at the table. Kelly kept up the conversation after he had sat down, — called me a son of a bitch again; and I said: `You are another one.' He then said: `I have had it in for you, and I will fix you now.' At the time I was fixing a gun for a customer, standing at the counter. He advanced towards me, saying that he would fix me, etc., a distance of eight or nine feet, and I threw the gun up in my hand like this, [indicating.] I said, `Stay out of here;' and undertook to load the gun. The extractor bound too tight on the cartridge, and set it off. I did not put the gun to my shoulder, nor did I take aim. At the time I shot. deceased could have reached the revolver with his hand. The gun had gone off accidentally two thousand times. The extractor binds up tight on the cartridge. It is a rim-fire. The hammer strikes on the rim. If it was a center-fire, it would not do that. I judge Kelly to have been six feet in height, and to have weighed between one hundred and sixty-five and seventy pounds. After the gun went off, Kelly ran out of the tent. He said, `You son of a bitch, I will get my gang, and fix you;' and then I got scared, and run over to Smith's house. There were two or three circus fellows, I believe, standing there at the time." The following questions were then asked defendant by his counsel: "Question. Why did you shoot Kelly? Answer. Because the gun went off accidentally. Q. Well, what occasion had you for shooting him? A. No occasion. Q. Was you afraid of Kelly? A. Well, I was afraid of him, but I did not shoot him because of that. Q. Had the deceased ever threatened you prior to that time?" But the court, of its own motion, refused to permit the testimony. On cross-examination, defendant testified that the gun went off accidentally. "Question. You were not shooting him because he called you a son of a bitch? Answer. No, sir. Q. You did not kill him because he was advancing on you? A. No, sir. Q. What did you think of it? A. I thought it was wrong. Q. When this shot went off, did you shoot him because he was advancing on you? A. I shot him because the gun went off accidentally in my hand; it wasn't my fault. Q. You were not defending yourself at that time? A. No, sir. Q. There was no necessity? A. There might have been a necessity. Q. The necessity hadn't arisen at the time of your shooting him, so that you had to shoot him in self-defense? A. No, sir; I had no cause to shoot him at the time. Q. You have said all that took place between you at this time? A. Yes, sir; at the present time."

Miss Mamie Hughes' account is that, as she was coming from the Tivoli Hotel with a market basket, she saw a lady standing on the sidewalk, and "two men quarreling in there, [the shooting tent.] I saw this man sitting in the chair. He got up, and made a remark to this man in a laughing manner, and the fellow was standing there with the gun in his hand. He had a buckskin suit on. He didn't raise the gun with an aim, but shot. If he had raised it, I would have seen him do it. He shot without having the gun raised. Kelly raised from the chair, and had taken one or two steps towards this gentleman, when he told him to stop. He was six or eight feet away. Question. What was Kelly doing at the time this man shot him? Answer. He had just risen out of the chair, and stepped towards this gentleman, when this gentleman said: `You keep back.' The defendant was standing at the end of the counter. Mr. Stevens, the defendant, was looking very pale; whether it was from madness or fear I can't say."

This was the testimony of the eye-witnesses as to the shooting. It was also shown by other testimony that the gun used, or one like it, would "go off" accidentally. It appeared also, from the testimony of several witnesses, that he would have spasms; had tried to kill himself; and his mother had hallucinations; told wild and improbable stories, etc. Just before the close of the testimony there appears in the bill of exceptions the following statement: "At this point the...