State v. Stockwell

• Decision Date: 23 June 1891
• Citation: 106 Mo. 36,16 S.W. 888
• Parties: STATE v. STOCKWELL.
• Court: Missouri Supreme Court

16 S.W. 888

106 Mo. 36

STATE v. STOCKWELL.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

MANSLAUGHTER — INSTRUCTIONS.

1. Where the evidence shows that deceased was killed by the discharge of a gun which defendant was trying to wrest from deceased's brother, and that deceased, in attempting to assist her brother, struck or pushed defendant, it is proper to instruct the jury that if they believe from the evidence that deceased struck or assaulted the defendant, and that while under the influence of violent passions aroused thereby he shot and killed her without malice, and did so under circumstances not constituting excusable homicide, they should find defendant guilty of manslaughter in the fourth degree.

2. Where defendant is convicted of manslaughter, the giving of instructions in regard to murder is not assignable as error.

Appeal from circuit court, St. Francois county; JAMES D. FOX, Judge.

Jasper N. Burks, M. L. Clardy, and Thos. B. Crews, for appellant. Atty. Gen. Wood, for the State.

THOMAS, J.

Defendant was jointly indicted with his father, Thomas Stock well, in the circuit court of St. Francois county, in February, 1887, for the killing of Juda Bess. Upon a trial had, Thomas Stockwell was acquitted, but the defendant was convicted of manslaughter of the fourth degree, and sentenced to imprisonment in the penitentiary for a term of two years. The difficulty out of which this prosecution grew occurred on the 16th of November, 1886, in St. Francois county. At the time, Robert Stockwell, the appellant, lived on a farm in said county, the legal title to which was in his wife. Thomas Stockwell, the father of Robert, made his home with him. Jonathan Bess and family occupied a part of the same premises, living in a house distant about a quarter of a mile from the Stockwell residence. They were there by virtue of some claim which was not recognized by Stockwell, and they paid no rent. On the morning of November 16th, Robert Stockwell and his hired man were cutting fire-wood near where Bess lived. After they had been there a while, Bess and his son Daniel went into the timber and commenced cutting. As soon as Robert Stockwell saw them, he went home. (He is very deaf, and he said his purpose in going home was to get his father to go with him and talk to Bess, and warn him from cutting the timber.) He and his father soon returned, and went to where Bess and his son Daniel were chopping. Almost immediately thereafter, Thomas Stockwell attacked Jonathan Bess, and the two engaged in a hand-to-hand conflict. Daniel Bess states that about the same time Robert Stockwell struck him with a stick, and knocked him down; but Robert denies it, and it is admitted by Daniel that he made no complaint to any one of being hurt. During the mêlée, Jonathan Bess told Daniel to go to the house and get his gun. It was about 60 yards to the house. Daniel went for the gun, — it was a double-barrel shotgun, — and in a few minutes returned with it in his hands, accompanied by his sister, Juda Bess. All this time Thomas Stockwell and Jonathan Bess were keeping up a sort of desultory warfare, old man Stockwell getting the worst of it; and, when Daniel returned, Jonathan Bess had just knocked Thomas Stockwell down again, and was kicking him. As Daniel got over the fence, near where Robert Stockwell was standing, he cocked the gun, and continued on towards Robert; his sister, Juda, walking in front of him. As they approached Robert, the latter rushed past the girl, and sprang at Daniel, and seized the gun. Then there was a struggle for its possession. While the two were contending, the girl attempted to assist her brother, and struck or pushed Stockwell. Just at that time, or a moment afterwards, the gun was discharged, and the load of shot took effect...