State v. Thomas

• Decision Date: 30 April 1883
• Citation: 78 Mo. 327
• Parties: THE STATE v. THOMAS, Appellant.
• Court: Missouri Supreme Court

78 Mo. 327

THE STATE

v.THOMAS, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Iron Circuit Court.--HON. JOHN L. THOMAS, Judge.

REVERSED.

Indictment of Edward Thomas, for the murder of Nicholas Joos.

Ellis Lassater, a witness for the State, testified: I was present when Joos was killed at Middlebrook. I was on the Widow Seitz's porch thirty or forty yards away at first; saw Edward Thomas make a motion with his hands toward Joos' mouth. Joos got up. No blows passed then. They had their hands up. I then went there. They clinched and fell, and rolled down hill ten or fifteen steps, first one on top, then the other. When I came to them Joos was on top and rolled off. Ed. got up. I pulled him off. Joos didn't do anything, but lay on his back with his hands stretched out on the ground. Ed. struck him on his head two or three times with his fist, and knocked him in the mouth, stamped him in the mouth with his boots. I didn't see him stab Joos; but I know he was stabbed; didn't see a knife when I took him away from Joos; saw no wounds at that time; only his mouth was mashed in and bruised; he was lying on his back; he breathed a little and was dead in a short time. I didn't examine his body further at that time. Two or three minutes after the difficulty Ed. got on his horse and started back toward where Joos was lying. I caught his horse by the bridle-rein and stopped him. He then had a knife, but didn't say anything about deceased. He said to me: “If you don't let loose my horse, I'll kill you, God damn you.” Deceased was struck with the knife in the left breast.

Charles Seitz testified: I saw Edward Thomas knock a cigar out of Joos' mouth with his finger. Joos got mad. Then they had a few words. Ed. pulled off his coat, and struck first with his fist. Joos struck back. They clinched near the top of the hill in front of Michael Seitz's saloon, staggered and rolled down the hill, quick, Joos on top. I took a seven inch dirk out of Ed.'s hand. William Warren wanted it and I gave it to him. Ed. did not seem to be mad at first. They were talking and joking together before Ed. slapped the cigar out of his mouth. I don't recollect of Ed. apologizing and offering him another cigar. I was close enough and think I could have heard and seen if it had been done.

Herman Held: I saw Joos and Thomas come into the saloon and drink together, but did not see how the difficulty commenced. I was twenty steps off. I saw them clinch and roll down the hill together. At last Ed. got on top, and at the foot of the hill, took hold of Joos' chin-whiskers and struck him two or three times with his boot. Joos did not hit Ed. but raised as if to strike, tried to strike, but was unable. Ed. pulled him by the whiskers and struck him in the face. I didn't hear either say anything. Joos was lying on his back and seemed to be senseless when Ed. struck him. He didn't resist. I went up in three or four minutes; he was nearly dead, had a knife wound in the breast. I didn't see Thomas have a knife, he struck with his fist; didn't see Joos have any weapon, or try to use one. It was Sunday afternoon between four and five o'clock, June 15th, 1879. Joos was a pretty good sized man, much larger than defendant.

Edward Seitz: Thomas knocked cigar out of Joos' mouth; then he struck first and Joos struck back. Then Ed. drew a knife and struck with it; got it out of his hippocket and struck Joos in the breast, a down stroke. They clinched and rolled down the hill. There I took the knife from Thomas and handed it to Charles Seitz and Warren took it from Charles. After the knife was taken from Thomas he hit Joos in the mouth. Joos' teeth were all broken. When Thomas kicked him he was already out of wind, lying on his back, almost dead. Didn't see Thomas do anything else except having a fuss with Lassater; didn't see Joos have any weapon; he didn't use any. Before the fight we were all sitting on the porch of the saloon, and were friendly and in a good humor. Ed. and Joos had an argument; they were quarreling, not talking loud; then they got in the difficulty. I don't know Joos offered to fight Thomas. I didn't pay much attention. I wasn't much drunk.

Doctor Tom. R. Golding testified to having made the post-mortem examination and described the wound. Witness said: It was about one inch wide in the heart. That man wouldn't live two seconds after receiving that wound. It was instant death. They must have been some distance apart, probably a foot, when it was given. I discovered no other wound or bruise, no appearance of being stamped in the mouth. If this man had received the wound where the fight began they could not have rolled down the hill; he hadn't any power after that wound. A blow knocking out the teeth after death would not cause discoloration of the skin, but it would cut the lip.

Wm. J. T. Warren for defendant: Joos was standing, Thomas sitting on the steps. Thomas tipped the cigar Joos was smoking, on which there was at least an inch of ashes. Joos did not seem to take it as an insult; he went off, was gone five minutes; when he came back, he was mad; went close to Thomas, who said “Go away from here; I don't want any trouble with you.” I said: “Let's have no fussing here; let's have a good time” Joos stood there, went off ten steps, whirled around and came back and took a hold of Thomas by the left shoulder. I said to Joos “Ain't you my friend?” He said “Yes,” but held Thomas and crowded him back on the steps. Thomas raised himself. Joos then threw him on the ground; he got up and they clinched and rolled down hill. Joos got on top. I did not know what to do. Thomas got his knife out. Joos saw it and pressed his arm back against the ground. I set my foot on Thomas' arm and tried to pull Joos off. I don't know how, but somebody pulled my foot off; finally the man was struck. Knife was not drawn until after Joos had him down at the foot of the hill. After I stepped on Thomas' hand, Joos let his arm loose, and grabbed his throat with his left hand and struck with his right hand. Joos was sixty pounds heavier than Thomas, large but not very fleshy, could handle Thomas easily and did so, could have beat him to death. The distance from the saloon, where the fight occurred, to the Widow Seitz's house is about 100 yards, and the house is considerably hidden from view. There were present at the commencement, Mayberry, Watson and myself; Charles and Ed. Seitz shortly afterward; did not see Lassater till after the difficulty. After the flipping of the cigar, Thomas offered an apology; he seemed to have done it in fun. Charles Seitz picked the knife up and gave it to me. I put it in my pocket, but the pocket was torn and I lost it. The weather was warm and Thomas had his coat off, lying across his lap, before the difficulty commenced. About a month and a half ago at Schmitner's saloon, in Pilot Knob, Charles Seitz told me he knew very little of this case; this week in front of Grandhomme's saloon at Ironton, Lassater told me, in the presence of Isaac M. Johnson and others, that he was not present until the trouble was nearly over and knew very little about this case. (Upon this point the witness Lassater contradicted Warren.) I had been at the saloon nearly all day; had been drinking some; can't say I was pretty drunk, or wasn't. I felt the influence of liquor; am positive I wasn't drunk, nor Thomas, but Mayberry was. I believe Joos struck first, but won't swear positive. I didn't see Ed. hit Joos with his fist before they clinched. I know Thomas had the knife. I believe I saw him strike Joos with the knife, but not at the same place; thought he flipped the cigar in fun; his manner was not insulting. When Ed. struck with the knife, Joos had him down and held him by the throat and struck him with his hand. I considered Thomas' life in danger; I do for a fact. I was not helping Thomas.

John S. Ruple: I was in the saloon the day of the killing; heard Joos and Charles and Ed. Seitz talking about Thomas being in the upper part of town. Joos said if he came down there he would fix him. Afterward he told me: If Ed. Thomas comes here to-day I will kill him. I left before the occurrence.

Dr. Geo. W. Farrar, for the State: A man cut through the heart, as Dr. Golding describes this wound to have been, could live no longer than the time required to drain the blood from the brain--perhaps a few minutes. He might live longer, depending on the character, size and direction of the wound.

Oliver Mayberry: I saw the difficulty; first saw Joos talking angry and loud, pointing to a cigar on the ground; then he walked off and came back and took hold of defendant, who sat on the steps, by the shoulder, and wanted to fight him. Defendant said: “Go away. I don't want to fight, I don't know you.” Warren said to Joos: “I thought you were a friend of me; if you are give me your hand.” Joos gave Warren his right hand, his left still on Ed.'s shoulder. He then pushed Ed. back on the steps' floor. Ed. rose and clinched him, and he threw Ed. five or six steps off. Then they clinched and rolled over and over and finally stopped, Joos on top. Next I saw blood run out of Joos. Ed Seitz ran up to me and said: “We want a fair fight;” and there were a few moments I didn't see him. Ed. Thomas was lying on his back; couldn't see where Joos had hold of him. When Ed. Seitz stopped me defendant was completely under Joos' control. Joos was a large man, very muscular. I saw defendant when he got up; he threw Joos off, run around him and went to his horse; didn't see him stamp or kick Joos; didn't see defendant have or flourish a pistol or knife; didn't see Lassater take hold of defendant's horse. I was ten or fifteen feet away. Warren, Thomas and myself had been at the saloon all day, talking and drinking a glass of beer occasionally; don't think at the time of the occurrence I was drunk. I didn't see defendant slap the cigar out of Joos' mouth; didn't see everything; wasn't noticing...