State v. Weakly

• Citation: 77 S.W. 525,178 Mo. 413
• Parties: STATE v. WEAKLY.
• Decision Date: 09 December 1903
• Court: United States State Supreme Court of Missouri

77 S.W. 525

178 Mo. 413

STATE v. WEAKLY.

Supreme Court of Missouri, Division No. 2.

December 9, 1903.

HOMICIDE—EVIDENCE—INSTRUCTIONS—MANSLAUGHTER IN FOURTH DEGREE.

1. Rev. St. 1889, § 3477, provides that manslaughter in the fourth degree includes every homicide not justifiable or excusable which was manslaughter at common law, and which is not declared to be manslaughter in some other degree. Rev. St. 1899, § 2627, makes it the duty of the court to instruct the jury on all questions of law arising in the case. Held, that where, on a prosecution for murder, the evidence showed that accused shot deceased intentionally, but there was evidence that deceased assaulted defendant and struck him over the head with a revolver just before the fatal shot, it was error not to charge on manslaughter in the fourth degree.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Chance Weakly was convicted of murder in the second degree, and he appeals. Reversed.

Jno. A. Gernez, for appellant. Edward C. Crow and Bruce Barnett, for the State.

BURGESS, J.

Defendant was convicted of murder in the second degree, and his punishment fixed at 10 years' imprisonment in the penitentiary, for having shot and killed with a pistol one John Fox, in the city of St. Louis, on the evening of December 25, 1901. The case is before us upon his appeal for review.

Both defendant and deceased were negroes. The killing occurred at a negro clubroom in said city, of which both parties were members. William Fox, a brother of the deceased, and acting vice president of the club, testified on behalf of the state substantially as follows: That at about half past 8 in the evening of Christmas Day he was at the clubrooms, when Chance Weakly, the defendant, came in, and witness said to him, "I told you about your treating me. It isn't right, the way you have acted, shooting here;" and that defendant replied, "What shooting?" and witness said, "You done it;" and defendant answered, "I have done it, and what are you going to do?" and witness said, "There is nothing to do but to go out and stay out;" whereupon defendant put his hand back to his pocket, as if to draw a pistol, and upon this witness' brother John, the deceased, stepped into the room, and pointed a gun at the defendant, saying: "Chance, don't do that. I am bound to protect his life;" and Chance replied, "I have not got nothing." Deceased wanted witness to search defendant, but witness said, "I never took advantage of no one. I am not going to run from him." The defendant then said that he "didn't have nothing," and witness said, "Let him go, John." The deceased then put up his gun, and said to the defendant, "Don't think hard of me for what I have done. I haven't done anything but what you would do for your brother." Defendant then said, "That is all right, John." The deceased then walked into the next room, but a moment later said to the defendant, "Chance, I can talk to you?" and defendant replied, "Certainly." The deceased and the defendant then walked out into the hall, and in four or five minutes deceased returned, saying, "Everything is all right." And the defendant said, "Everything is all right with me and him, John." The deceased then turned his back, and the defendant fired two shots at deceased, which took effect in the head and jaw. He fell in witness' arms, and, as far as witness could tell, died almost instantly. At the time deceased was shot he had in one hand a cane, which he carried as a regular habit, having become crippled some time before, and in the other hand a cigar, which he was smoking. Witness did not see defendant at the time the first shot was fired, but he did see him as he fired the second shot; defendant having gotten to the door by that time. Immediately after this occurrence, defendant turned and ran away, and was seen no more about the clubrooms. Just before defendant fired the shot, he said, "Yes; it is all right with me, John." Malcolm Powell, who was at the club at the time of the shooting, testified, in substance, that the defendant came to the clubrooms that night with some other parties and witness' brother. Will Fox told defendant that he had mistreated him, shooting off his gun, and that, if he could do no better, he wished he would stay away; that he would do him a great favor by doing so. Words became very hot, causing witness to quit playing cards, and to go to the room where they were in time to hear defendant say to Will Fox, "Well, I have done it. What are you going to do about it?" to which Will Fox replied, "I can do nothing but tell you to stay away;" that defendant then stepped back and made a motion as if to draw a gun from his pocket, whereupon witness' half-brother, John Fox, the deceased, stepped in and lowered a pistol at the defendant, with these words, "Don't do that, Chance. I am saving my brother's life, and at the same time protecting your life." The defendant then said, "I have not got anything. I have not got any gun." The deceased then walked into an adjoining room, but very soon returned, and said to the defendant, "Chance, I haven't done anything more than you would do for your brother. I am protecting my brother's life and yours at the same time. I don't want you to think hard of me. I have not done anything more than you would do. Can't I talk to you?" and to this defendant smiled, and answered, "Yes." Defendant and the deceased then went out into the hall to talk, and soon the deceased returned, saying, "Everything is all right, ain't it, Chance?" and Chance said, "Yes; everything is all right with me." Just as deceased stepped over the door sill, witness heard a shot fired, and defendant then stepped just inside the room and fired a second shot, and deceased fell across the door. The defendant turned and ran away. Galvin Granch, a member of the club, was at the club on that evening, and heard Will Fox saying to the defendant: "When you come here shooting as you did to-day, you know it gives us trouble. The police are around where there is shooting, and it will draw the police. I don't like that way of doing, and, if you want to do that, you will have to stay away"— and heard the defendant reply: "It is done, and what are you going to do about it?" To which Will Fox responded: "I am not going to do anything, but you can walk out if you don't behave yourself." This conversation continued, and defendant started, "kind of walking sideways," with his hand at his pocket, and saying, "I don't think you have treated me right." At this point John Fox, or deceased, came in and said, "Throw up your hands," and told Will to search him, but Will said, "No; I won't search any one. I don't believe in taking advantage of any one. I believe in treating everybody right, and I want them to treat me right. Put the gun up, and come back in here." Deceased then put up his gun, and a moment later said to defendant: "Weakly, come into the hall. I can talk to you in here. There is no use having trouble." Deceased and defendant went out into the hall, and returned in about five minutes, at the end of which time witness heard deceased say, "It is all right with you, Chance?" Chance answered, "Yes." Witness then thought that the trouble was over, but about three minutes later two shots were fired, and he looked, and saw John Fox fall into his brother's arms, and then on to the floor, just inside the door. These witnesses testified that during the conversation in the hall there was no loud or excited talking. James Massey, a police officer, hearing the pistol shots, hastened to the club, and found the deceased lying on the floor with a bullet wound in his head, the end of the bullet sticking out of the forehead. He had no pistol on his person. D. F. Hochderfer, a physician, testified that, upon a post mortem examination by the coroner at the morgue, he found that the bullet had gone...