State v. Strong

• Decision Date: 23 January 1900
• Citation: 153 Mo. 548,55 S.W. 78
• Parties: STATE v. STRONG.
• Court: Missouri Supreme Court

55 S.W. 78

153 Mo. 548

STATE v. STRONG.

Supreme Court of Missouri, Division No. 2.

January 23, 1900.

HOMICIDE — INSTRUCTIONS — EVIDENCE — SELF-SERVING ACTS.

1. Where, on a trial for murder, accused has not attempted to show that the sole cause of deceased's death was the maltreatment of the wound, and not the wound itself, evidence as to whether a certain treatment was proper is inadmissible.

2. An instruction as to manslaughter in the third degree cannot be given in conjunction with an instruction relative to self-defense, since the latter is an affirmative defense, and embraces every self-protective intention known to the law, though it extend to the taking of life.

3. An accused's testimony that he did not intend to kill deceased, though he stabbed him several times, cannot be received or made the basis of an instruction.

4. An instruction on a trial for murder, using the words, "in heat of passion," without defining them, is erroneous.

5. Evidence that accused, immediately after inflicting the mortal wound, went for a physician, is inadmissible, as being a self-serving act.

Appeal from circuit court, Dunklin county; J. L. Fort, Judge.

John Strong was convicted of manslaughter in the third degree, and he appeals. Reversed.

J. P. Tribble, for appellant. Edward C. Crow, Atty. Gen., for the State.

SHERWOOD, J.

Indictment for murder in the second degree, trial, and conviction of manslaughter in the third degree, and defendant appeals. The difficulty which resulted in the tragedy which forms the basis of this prosecution arose between defendant and Gastine on July 3, 1897, in relation to a quarrel between their boys. Gastine died on the 17th of the same month, and the state asserts that his death resulted from wounds inflicted on him by defendant with a pocket knife. The defendant's account of the matter, as abstracted by the state, is the following: "I am the defendant. On July 3, 1897, a number of the neighbors had come over to my house to have dinner, and after we had dinner I lay down, and went to sleep, and along in the afternoon the boys came in, and was talking about a fight among the children. Directly there was a row again among the women, and I asked what was the matter, and Mr. Spaulding's boy said that Mr. Gastine's boy had whipped my boy, and that Mr. Gastine would not allow him to defend himself. `Well,' I says, `I just guess that is a mistake.' I says, `Eph, I guess you raised a racket, and if you have I will punish you.' I went in the house, and put on a pair of shoes, and proceeded to the pump, where Gastine was. I asked, `What is the matter with the boys?' He said, `Nothing that I know.' I said: `Mr. Spaulding's boy had come and complained, and if my boy has been imposing on your boy I want to whip him. He shall not impose upon my neighbors' children.' Gastine said there was nothing wrong with the boys. I said: `I don't know; there must be something some way. Mr. Spaulding's big boy would not have told it.' Gastine said there was nothing wrong with the boys, and turned loose of the pump handle, and come towards me, and as he started towards me he rolled up his shirt sleeves, and said, `Damn you, I will just whip you.' As he came I stepped back over one rail of the wooden track, and he kept rushing onto me, and I picked up a stick, — a limb, — one end of which I pulled out of the mud. He gave a big rush at me, and I hit him over the left shoulder, and what went with the stick I am not able to say. He got that stick or some other stick, and hit me two licks, one on the head and one on the neck, and he hit me again on the arm, and then he clinched me, and took hold of my throat with his left hand, and his right hand hold of my neck, and he said, `I will break your damned neck;' and by this time I was off of the track, working in towards the fence, and I thought I was in a critical condition, and he was worrying me. I took my knife from my left hip pocket with my left hand, and opened it with my right hand, and cut him. As soon as I could get loose from him, I tore loose, and run away. I went behind a stump. He jerked a knife out of his pocket with his right hand, and started towards me. He was trying to open it. I ran, and got behind another stump, and he was yet coming towards me, and I told him to go away, as I did not want to bother him. I did not think of having any difficulty with him when I went out there. I was not an able-bodied man like he was, and when I struck him I aimed to check him until I could get away. I think the club you show me is the one I used on him. When I cut him he was overpowering me, and it seemed no one would come and take him off, and I simply cut him to get loose from him. I did not intend to kill him. Mr. Poe had told me before that recently Gastine did not like me, and was going to give me trouble. He said it was on account of the cattle. When we had trouble about the cattle, I went to Gastine, and told him he was a good driver, but we had rules, and he must live up to them. He said, `All right.' I had no hard feeling towards the man at all. The cutting happened between 3 and 4 o'clock in the afternoon. I got the club after I got to talking to Gastine. I thought he would hurt me seriously, if I did not cut him. He had let loose of the pump, and was advancing towards me, when I hit him. I am not able to do physical work. I was superintendent. I have stone in the bladder. Gastine did lots of work. He had ordinary strength. He loaded, unloaded, drove, sawed, and chopped logs. I was working for the Laswell Milling Company at that time. I had been in their employ four or five years then. I work for them now. The knife...