State v. Umfried

• Citation: 76 Mo. 404
• Parties: THE STATE v. UMFRIED, Appellant.
• Decision Date: 31 October 1882
• Court: United States State Supreme Court of Missouri

76 Mo. 404

THE STATE

v.UMFRIED, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Benton Circuit Court.--HON. JAMES B. GANTT, Judge.

AFFIRMED.

W. S. Shirk and James H. Lay for appellant.

D. H. McIntyre, Attorney General, for the State.

NORTON, J.

Defendant was indicted in the Benton county circuit court at its October term, 1881, for murder in the second degree in killing Walter Bartlett. At the May term, 1882, of said court, he was put upon trial and convicted of manslaughter in the fourth degree, and his punishment assessed at two years' imprisonment in the penitentiary. The case is before us on defendant's appeal, and the ground relied upon for a reversal of the judgment, is the action of the court in refusing to admit evidence, and in giving and refusing instructions.

The evidence preserved in the record tends to show the following facts: that deceased, the morning he was killed, went to the store of defendant where the post-office was kept, called for his mail and was proceeding to leave when he was accosted by defendant in a friendly manner, who then said to Bartlett, “I understand that you accuse me that I have worked against your wind-mill;” Bartlett replied “that he had;” defendant said “you are mistaken and I can prove it;” whereupon deceased said “the windmill you bought you paid more, or $5 more for, and I can prove it by Charlie Davis;” thereupon defendant sent for Davis, and when Davis came Bartlett asked him if he (Davis) had not told him that the wind-mill cost a certain sum, naming it, to which Davis replied that he did not remember, but could tell him in a few minutes; that at the time Davis came into the store defendant was sitting on the north counter, and Bartlett was standing near the counter on the opposite side, about eight feet from defendant, the space between the two counters being ten or eleven feet; that the controversy between deceased and defendant continued, and deceased called defendant “a d--d lying son of a b--h,” to which defendant replied, according to the evidence of one witness, “that is not so,” and according to another, “that is a lie;” whereupon deceased repeated what he had said, picked up a split-bottomed chair, drew it back, advanced a step or two toward defendant, who jumped off the counter, and passing in six feet of Bartlett went into the post-office which was kept in the same building, and deceased stepped back a step or two, set the chair down to his left, holding it in his hands. Umfried came back from the room in which the post-office was, stepped behind the counter on which was a show-case, the top of which was from four to four and a half feet from the floor; that when defendant returned from the post-office he had an eight inch Colt's navy pistol in his right hand cocked and presented over the show-case, according to one witness in the direction of deceased, and according to another pointed at the deceased; that defendant ordered deceased, who was talking boisterously, twice, to leave his store; that witness, Davis, who observed defendant with his pistol, said “Hold on Umfried,” and at that time Bartlett struck around with the chair left-handed over the showcase which knocked the pistol to one side, when it immediately came back and was fired, shooting deceased in the forehead near one eye, killing him instantly.

Evidence was also introduced of threats made a short time previous by deceased against defendant, those made the day before the tragedy having been communicated to defendant.

1. EVIDENCE: res gestae.

During the examination of witness Brill, he was asked to state whether or not, a day or two before Bartlett was shot, he heard defendant say that his son had told him that Bartlett was angry with him and had threatened to mash his brains out, and whether or not defendant requested him to see Bartlett and explain to him that he had not worked against his wind-mill, and that he did not want any trouble with him. The refusal of the court to allow this question to be answered, it is insisted is error.

The statements sought to be proven were not a part of the res gestae, and being the statements of defendant offered in his own favor, were inadmissible under the rule laid down in the case of the State v. Evans, 65 Mo. 574.

The court, of its own motion, gave eleven instructions, the second of which is as follows: “Manslaughter is the intentional killing of a human being in a heat of passion, on a reasonable provocation, without malice and without premeditation, as these terms are hereinbefore explained, and under circumstances that will not be justifiable or excusable homicide; and if the jury find and believe that the defendant, in a sudden passion, on a reasonable provocation, intentionally shot and killed the deceased, without malice or premeditation, and...