State v. Stiltz

• Decision Date: 04 February 1889
• Citation: 10 S.W. 614,97 Mo. 20
• Parties: STATE v. STILTZ.
• Court: Missouri Supreme Court

10 S.W. 614

97 Mo. 20

STATE v. STILTZ.

Supreme Court of Missouri.

February 4, 1889.

1. HOMICIDE — MANSLAUGHTER — INSTRUCTIONS.

In a prosecution for murder, where the evidence showed that the defendant and the deceased had been engaged in a quarrel, and that deceased was advancing upon the defendant in a threatening manner, with a rock in his hand, when the defendant shot him, held, that an instruction on manslaughter in the second degree, based on the theory that the killing was without design to effect death, "but in a cruel or unusual manner," was improper, but that an instruction on manslaughter in the fourth degree should have been given.

2. SAME — SELF-DEFENSE.

An instruction in such case that if the defendant brought on the difficulty terminating in the homicide by his own willful and unlawful act, or of his own free will and inclination, he could not set up the plea of self-defense, no matter how imminent his peril, is erroneous.¹

RAY, C. J., dissenting.

Appeal from circuit court, Hickory county; W. I. WALLACE, Judge.

C. D. Essex, A. S. Smith, J. H. Childers, and B. J. Emerson, for appellant. The Attorney General, for respondent.

BRACE, J.

The defendant was indicted by the grand jury of Hickory county for murder in the first degree, for killing one Thomas Moore. Upon his trial in the circuit court of that county, at the May term thereof, 1888, he was convicted of murder in the second degree, and sentenced to 10 years' imprisonment in the penitentiary. His motion for a new trial and in arrest of judgment having been overruled, he has brought his case here by appeal.

1. After a careful examination and consideration of the objections urged against the action of the court in refusing to discharge the panel of jurors selected to try the case, and in accepting and rejecting evidence on the trial, we find nothing in them that would warrant a reversal of the judgment.

2. The evidence of the first witness for the state, and of the first witness for the defendant, will sufficiently present the facts connected with and attendant upon the homicide to enable us to determine the questions raised upon the instructions.

For the state, M. C. Wheeler testified: "I am acquainted with defendant and Moore. Remember the difficulty between them at Quincy on Saturday morning. About 10 o'clock I and Moore and L. Stiltz and Wm. Wheeler and Johnson went to barn to have game of cards. Had few games. Stiltz claimed he wanted to quit. Moore said Stiltz always jumped the game when he got a little advantage. Stiltz said: `It don't matter; I'll quit.' They got into dispute. Stiltz ran to back of barn, and got rock. Wm. Wheeler stopped the racket. We went to town. Met in town. We were there a while. Returned to barn about 2 or 3 o'clock. I and Geo. Nowell went to barn. Moore and Stiltz were quarreling. Nowell and I went in barn. Moore said: `Come and see the fair thing.' We went out. Geo. Nowell said: `I'll do the fighting, if any is to be done.' We got boys stopped. A few minutes after that Moore went walking along. Stooped down and took hold of a rock. Don't know whether he picked it up or not. Tom walked towards Stiltz. Stiltz said: `Haven't we settled that?' Moore said: `Have I said anything to you?' Stiltz said: `What did you pick up that rock for?' Tom said: `I did not pick up a rock.' Stiltz said: `You are a damned liar; you did.' When Stiltz called him a d — n liar, Tom started toward him. Stiltz just raised his pistol out of his pocket; just so it could be seen. Then the boys crowded up, and stopped racket. The next I heard was some one of them called d — n liar. Moore said: `Did you call me a d — n liar?' Stiltz said: `Yes; you are a d — n black son of a bitch.' Tom said: `I won't take that; would you, boys?' and started towards him. When he got up towards Stiltz the shot was fired. Geo. Nowell said: `Lyman, you've done something you'll hate all your life.' Stiltz said: `I don't give a d — n.' Moore said: `I'm shot.' Moore and Stiltz were 5 or 6 feet apart. Geo. Nowell was standing between parties, facing Stiltz. Stiltz shot over left shoulder of Nowell. I was 10 or 12 feet from Moore. I never saw anything in Moore's hand at time he was shot. I was in a drug-store after first and before second difficulty. Lyman said: `If Moore fools with me any more, he'll get hurt.' I did not see Stiltz have any weapons. After Moore was shot, they took him out to his father's, — I and others. This all occurred in Hickory county, Mo., at Quincy. Cross-Examination. I don't know Moore's age. Suppose him 24 or 25 years of age. I don't know defendant's age. Have known him ever since he was a small boy. He was under age at time. Moore would have weighed 165 pounds. Stiltz would have weighed 130. Was 35 or 40 pounds difference in weight. Moore was a healthy, stout man. Moore was right smart quarrelsome when drinking. Often occurred when drinking that Moore would get in difficulty. In morning some controversy arose. Moore accused him (Stiltz) of jumping game. Stiltz spoke in pleasant manner. Can't say how Moore spoke. Stiltz said: `I am going to quit.' Moore went to cursing. Lyman got rock. Moore was swearing. They went to town. I did not see Moore get rock and put in his pocket. It was about 15 minutes before shooting that Moore stooped to pick up rock with right hand. Can't say whether he got rock or not. There were rocks lying around there. Don't think Moore had overcoat on. He did not have rock in hand at time of shooting. He might have had one in pocket; don't know. I saw Moore drink 2 or 3 times. I was noticing Stiltz at time of firing. Moore was going towards Stiltz the last I noticed him before firing. I didn't see Moore's hand at time of firing."

For the defendant, John Ferguson testified: "Jim Murphy, Tom Brown, and myself were going down to the carding-machine. Jim Murphy was going home, and asked me to go down to the foot of the hill with him. As we got opposite the old Phillip and Carter barn, Lyman Stiltz ran out of the barn crying, followed by Tom Moore. Stiltz said to Moore:...