State v. Thomas

• Decision Date: 10 March 1897
• Citation: 39 S.W. 459,138 Mo. 168
• Parties: STATE v. THOMAS.
• Court: Missouri Supreme Court

39 S.W. 459

138 Mo. 168

STATE v. THOMAS.

Supreme Court of Missouri, Division No. 2.

March 10, 1897.

HOMICIDE — INSTRUCTIONS — APPEAL — HARMLESS ERROR.

1. On a trial for murder, it is not error to tell the jury that they "may," instead of "shall," consider any threats made by deceased against defendant.

2. Where defendant claimed self-defense, but it appeared that deceased was unarmed and making no demonstrations of violence against defendant when the latter shot him, though there was evidence of uncommunicated threats, it was proper not to instruct the jury to consider them in determining who was the aggressor.

Appeal from St. Louis criminal court; Thomas B. Harvey, Judge.

Robert J. Thomas was convicted of murder in the second degree, and appeals. Affirmed.

J. R. Claiborne and G. N. Fickeissen, for appellant. Atty. Gen. E. C. Crow and S. B. Jeffries, for the State.

BURGESS, J.

From a conviction of murder in the second degree in the St. Louis criminal court at the March term, 1896, and the fixing of his punishment at 10 years' imprisonment in the penitentiary, for having at said city, on the night of June 30, 1895, shot to death with a pistol one James Burns, defendant appealed. During the day of June 30, 1895, deceased and defendant had several personal encounters, and one in the saloon of Ison & Petts on the night of the homicide, before it occurred. After the first difficulty in the saloon that night, deceased left, and returned again between 11 and 12 o'clock with two officers. The evidence on the part of the state showed that one of the officers, Bollinger, asked Burns if he wanted Thomas arrested. Burns said, "No." Bollinger then ordered both defendant and deceased out of the saloon. Burns then went out, and, after having washed his face, returned to the saloon. Thomas also went out, and into a grocery store near by, and in a very short time returned with a pistol in his hand, and asked who it was that was looking for him. Officer Bollinger then took hold of defendant, and, while backing him up against the ice box in his effort to take the pistol from him, deceased remarked to Thomas, "You have been beating me all day, and you might as well make a job of it." Defendant at once fired the pistol, and Burns fell dead as the result. Burns was unarmed at the time. Officer Bollinger testified as a witness on behalf of defendant that he was in the saloon on the night of the homicide, and separated Burns and defendant; that he then left the saloon, and did not return again until he heard a shot fired, and that when he did return he found Burns...