State v. Tabor

• Court: Missouri Supreme Court
• Writing for the Court: Sherwood
• Citation: State v. Tabor, 95 Mo. 585, 8 S.W. 744 (Mo. 1888)
• Decision Date: 04 June 1888
• Parties: STATE v. TABOR.

8 S.W. 744

95 Mo. 585

STATE v. TABOR.

Supreme Court of Missouri.

June 4, 1888.

1. HOMICIDE — MURDER — WHAT CONSTITUTES.

Upon trial for murder, an instruction that if the jury believe that defendant took the life of deceased "by shooting him in a vital part, with a pistol loaded with gunpowder and leaden ball, with a manifest design to use such weapon upon him, and with sufficient time to deliberate and fully form the conscious purpose to kill, and without sufficient reason, cause, or extenuation, then such killing is murder in the first degree," properly defines the offense charged, and affords no ground of exception. NORTON, C. J., and BRACE, J., dissenting.

2. SAME.

Where defendant and deceased had been in a saloon drinking and playing pool together, and, at the time of the killing, deceased had taken defendant by the arm, and they were going, in a good humor, towards a hotel, defendant being an assenting party, the crime is not reduced to manslaughter by the fact that before they left the saloon deceased had announced his intention to arrest defendant, and take

him to the calaboose, in the absence of evidence that defendant believed, or had good reason to believe, that such arrest was really intended to be made by force. NORTON, C. J., and BRACE, J., dissenting.

3. SAME.

Where two men of nearly the same size, were walking along the street together, conversing in a low tone, when one of them suddenly made a loud exclamation, and the other began firing with a pistol upon the one making the exclamation, who was unarmed and had not shown, drawn, nor, as far as could be seen, attempted to draw, a weapon, and the former continued to fire upon him after all attempts to avoid the aim had ceased, the killing was not in self-defense.

4. SAME — EVIDENCE — PROOF OF ANOTHER CRIME.

Upon trial for murder, it is error to admit evidence that defendant was an escaped convict, for the purpose of supporting a theory of the prosecution that defendant killed deceased on the belief that he was a detective seeking defendant's arrest, there being no evidence that defendant had such a belief. NORTON, C. J., and BRACE, J., dissenting.

5. SAME — TRIAL — BURDEN OF PROOF.

Upon an indictment for murder in the first degree, the homicide having been proven, and no countervailing circumstances being evolved by the testimony of the prosecution, the burden of proof to show that the offense was one of less degree, or that the killing was done in self-defense, is cast upon defendant.

6. SAME — INSTRUCTIONS.

Upon an indictment for murder, where defendant and deceased had been playing pool and drinking together, and were seen walking along pleasantly together, arm in arm, conversing in a low tone, when deceased suddenly exclaimed, "you will play hell;" and, after a brief struggle, defendant shot deceased, there is no evidence showing who brought on the difficulty, and an instruction as to the responsibility of a party who brings on a difficulty is improper. NORTON, C. J., and BRACE, J., dissenting.

Appeal from circuit court, Cass county; CHARLES W. SLOAN, Judge.

Indictment of Charles Tabor for murder in the first degree. Verdict of guilty, and defendant appeals. The objection made to the fourth instruction quoted in the second paragraph of the opinion was that it did not correctly define murder in the first degree.

H. Clay Daniel, Geo. Bird, and W. D. Summers, for appellant. B. G. Boone, Atty. Gen., Whitsett & Jarrott, and Railey & Burney, for the State.

SHERWOOD, J.

The following is a sufficient outline of the salient facts and features of this case to enable it to be understood. Appeal from the circuit court of Cass county, from the verdict of a jury finding defendant guilty of murder in the first degree. On the 17th day of June, A. D. 1886, defendant was convicted of burglary in the second degree in the Vernon circuit court, and sentenced to the penitentiary for a term of three years. In that case he was tried and convicted under the name of Robert Clark. Defendant was confined in the penitentiary until the 9th day of February, A. D. 1887, at which time he made his escape. On the 19th of August following, he came to Pleasant Hill, and early in the morning made the acquaintance of Maj. C. C. Dawson. Dawson was assistant station agent for the Missouri Pacific Railway Company at Pleasant Hill. After he made the acquaintance of defendant, they went to a billiard saloon, and engaged in a game of pool. Dawson, it seems, was successful in every game; but, as Tabor claimed to have no money, Dawson settled for the games they played. Tabor invited the crowd in the saloon to come to the bar and take a drink. The bar-keeper told Tabor that he would not let him have the drinks unless he had the money to pay. Tabor said that he did not have money enough. Dawson remarked: "If you do not intend to pay, I guess I will have to arrest you and take you to the calaboose." Tabor said: "All right, you will have to arrest me then." Dawson proposed to loan defendant a dollar, and settled for the drinks himself. They were both laughing and joking at the time they drank the liquor. Dawson took Tabor by the left arm, and they walked out of the saloon, arm in arm, laughing and talking, and were in the best of humor, and, it being about 12:30 o'clock, they walked in the direction of the Soldanell Hotel. Dawson was smiling, and seemed to be in a good humor. While they were walking in this manner, conversing in a low tone, Dawson was heard to say, "you will play hell." Tabor then drew his pistol, and fired; the first shot taking effect in the center of Dawson's chest. Dawson attempted to step behind Tabor in order to get out of his way. Tabor reached further around, and fired again, the shot taking effect in the left side of the breast, in front of the shoulder. Dawson made another effort to get behind Tabor. Then Tabor reached further around, and fired the third shot, missing Dawson. Dawson fell to the ground, and expired. The pistol Tabor used was a large 44 caliber. Dawson was unarmed at the time, and a portion of the evidence shows that he made no resistance to Tabor. There is testimony, however, showing, that at or immediately before the shooting, there was between Dawson and defendant "a kind of scuffle; they squirmed around." There was also testimony to the effect that the scuffle between Dawson and defendant was quite pronounced, one of the witnesses going so far as to pronounce it a street fight, though no one pretends that any blows were struck. The witness who testifies as just stated, also says that Dawson seemed to be jerking the defendant around with both hands, so that he could hardly keep on his feet. But this witness was some 65 yards from the scene of controversy, and describes the occurrence very differently from those who were within a few feet of the parties. The theory of the prosecution is that Dawson, who had been playing pool with defendant nearly all the morning, paying for his drinks, etc., and seemed to be fond of his society, was then taking him to dinner; but that defendant, without any reason therefor, suspected that Dawson was a detective, trying by a ruse to capture and return him to the penitentiary. This theory, however, is founded upon sheer surmise, and has not the slightest support in the testimony. To sustain this theory evidence was offered and admitted showing that defendant had been confined in the penitentiary, and had made his escape, as already stated. This evidence was objected to, and its admission is assigned for error.

1. There was no foundation laid for admitting evidence showing that the defendant had been confined in the penitentiary and had escaped therefrom. Evidence of another crime is never admissible unless so connected with the one then being investigated as to show that the commission of the former had something to do with the perpetration of the latter. Unless the...