State v. Stevens
Decision Date | 20 December 1888 |
Citation | 10 S.W. 172,96 Mo. 637 |
Parties | The State v. Stephens, Appellant |
Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. Henry P. White, Judge.
Reversed and remanded.
John F Waters, F. W. Griffin, F. M. Hayward for appellant.
The court erred in the definition of murder in the first degree and, particularly, in the definition of the word "deliberately," when distinguishing between murder in the first degree and murder in the second degree. State v. Ellis, 74 Mo. 207; s. c., 11 Mo.App. 587; State v. Lewis, 74 Mo. 222; State v Weiners, 66 Mo. 13; State v. Curtis, 70 Mo 594; State v. Sharp, 71 Mo. 218; State v. Simms, 71 Mo. 538; State v. Robinson, 73 Mo. 306; State v. McGinnis, 76 Mo. 362; State v. Rose, 14 Mo.App. 567; State v. Eaton, 75 Mo. 586.
B. G. Boone, Attorney General, for the State.
(1) Declarations of deceased, reduced to writing, read to the deceased and by him approved, signed and sworn to, were admissible. Whar. Cr. Ev. [9 Ed.] sec. 295. The instructions are all in the forms approved by this court except the instruction defining the word "deliberately." It is as follows: "Deliberately, for the purpose of this trial, means in a cool state of blood, that is, not in a heat of passion, caused by some just cause of provocation to passion." This was a harmless error, as there was no evidence of any provocation. The instruction in the form above is held not to be reversible error unless there is some evidence of provocation. State v. McGinnis, 76 Mo. 326.
Sherwood, J. Norton, C. J., and Black and Brace, JJ., hold that for the errors heretofore pointed out. Sherwood, J. dissenting.
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, Missouri, on the fourteenth 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, Missouri. On the evening of the fourteenth 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 eleven o'clock on the night of July 15, 1887. The deceased was a spare-built, boyish-looking man, twenty-two 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 the 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 the 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: This was signed and sworn to by the deceased, and witnessed by the two officers present.
The testimony of the defendant is as follows:
The following questions were then asked defendant by his counsel:
Q. "Why did you shoot Kelly?" A. "Because the gun went off accidentally."
Q. "Well what occasion had you for shooting him?" A. "No occasion."
Q. "Were 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.
Q. "You were not shooting him because he called you a son-of-a-bitch?" A. "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 you shooting him, so that you had to shoot him in self-defense?" A.
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).
Q. "What was Kelly doing at the time this man shot him?" A.
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 defendant would have spasms; had...
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