State v. West

• Decision Date: 05 March 1907
• Citation: 202 Mo. 128,100 S.W. 478
• Parties: STATE v. WEST.
• Court: Missouri Supreme Court

100 S.W. 478

202 Mo. 128

STATE v. WEST.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. HOMICIDE—INDICTMENT—SUFFICIENCY.

An indictment for murder, alleging that "defendant, a certain pistol then and there charged with * * * one leaden bullet * * * did discharge," etc., is not defective in omitting the word "with" before describing the pistol.

2. CRIMINAL LAW — INSTRUCTIONS — OBJECTIONS — SUFFICIENCY.

In a prosecution for homicide, an objection to the giving of certain instructions, made solely on the ground that they did not entirely cover all the facts of the case under the law, and as not being complete and sufficient under the law, was insufficient, where, on such objection being made, the trial court requested counsel to state which questions, if any, were not covered by the instructions given, to which counsel made no reply.

3. HOMICIDE—DEGREES—INSTRUCTIONS.

Under Rev. St. 1879, § 1654, providing that, upon indictment for any offense consisting of different degrees, the jury may find accused not guilty of the offense in the indictment, and may find him guilty of any degree of such offense inferior to that charged, and that any person found guilty of murder in the second degree, or of any degree of manslaughter, shall be punished according to the verdict of the jury, though the evidence shows him to be guilty of the higher degree of homicide, it was proper for the trial court, in a prosecution for murder, to instruct on murder in the second degree, though the evidence tended to show defendant guilty, if at all, of murder in the first degree.

4. SAME—MURDER IN SECOND DEGREE.

In a prosecution for homicide, an instruction on murder in the second degree was not erroneous, because defining the word "deliberately" in connection therewith.

5. SAME—MANSLAUGHTER.

In a prosecution for homicide, where there was no evidence of passion, words of reproach, or insult, and where one of two theories only could have been accepted by the jury, either that of murder or self-defense, defendant was not entitled to an instruction on manslaughter in the fourth degree.

6. CRIMINAL LAW—APPEAL—PRESENTATION OF OBJECTIONS — REQUEST FOR INSTRUCTION — NECESSITY.

In a prosecution for homicide, where, after the giving of the instructions, counsel for defendant, on being asked by the trial court if there were any other points of law upon which he desired to have the court instruct, made no request for an instruction on manslaughter, defendant could not complain of the court's failure to instruct thereon.

7. HOMICIDE—EVIDENCE—SUFFICIENCY.

In a prosecution for homicide, evidence examined, and held sufficient to sustain a conviction of murder in the first degree.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

John West was convicted of murder in the second degree, and appeals. Affirmed.

The indictment alleged that defendant and another, "a certain pistol then and there charged with gunpowder and one leaden bullet, then and there feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought, did discharge and shoot off at and against and upon" decedent.

John A. Gernez, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

On the 2d day of December, 1905, the grand jury of the city of St. Louis returned an indictment against the defendant, John West, and one Fred Jackson, charging them with murder in the first degree of one Ike Coleman on the 30th of July, 1905. The case was tried on the 25th of January, 1906, and resulted in an acquittal of Jackson and the conviction of the defendant, West, of murder in the second degree, and affixing his punishment for 10 years in the penitentiary. Motion for new trial was filed in due time, and overruled, and the defendant appeals.

The evidence in the case on the part of the state tended to establish that the defendant and the deceased, Fred Jackson, and most of the witnesses on both sides, were negroes. On Sunday morning, July 30, 1905, between 12 and 1 o'clock, there was trouble between the deceased and one Wesley House on the one side, and the defendant and one Fletcher on the other side. These four had been in a restaurant on Twenty-Third street, between Morgan and Franklin, and the defendant and Fletcher left first; the deceased and House leaving later on. As the deceased and House approached the defendant on the sidewalk, the defendant stooped in the gutter and picked up a stick, and said, "What are you s____ of a b____ doing, following us?" The defendant then hit at the deceased, drew a knife, and tried to cut him, but was prevented. After this difficulty the witness Williams testified that he saw the defendant in an alley in the rear of Morgan street, between Twenty-Second and Twenty-Third streets, and heard defendant say to Lonnie Bell: "Give it to me. I will go around." And thereupon Bell handed the defendant a bright shiny pistol, and the defendant and Jackson went around together out of the alley and onto Morgan street. Thomas Ewing was standing on the corner of Morgan and Twenty-Third and saw the defendant and Jackson walking together as they passed him; the defendant holding a pistol in his right hand. In a few minutes Ewing and Officer Roach heard two pistol shots on the south side of Morgan street, near Twenty-Third street, and the officer immediately ran to the place of the shooting. There was an interval of about two or three seconds between the two shots, and the sound indicated that they were fired out of a pistol. The officer found the deceased lying flat on his back in the middle of the sidewalk, his left hand alongside of him and his right hand across his breast. The right hand was clinched, but there was nothing in it. The left hand was open. A crowd soon gathered around, but the defendant was next to the deceased, and would allow no one to get near his body. When the officer inquired about the trouble, the defendant said: "I shot him. The man has got a revolver." The defendant then gave his pistol to the officer and surrendered himself. By the side of the deceased, and a little above the wound in his body, the officer found a large black pistol lying on the pavement. Another officer, Burke, arrested Wesley House, who was running away, and also arrested Fred Jackson who was still in the crowd near the deceased's body. Wilson Davis testified that he was walking away from the defendant and Jackson when he heard the first shot fired. He had just seen the deceased, Coleman, walking east on the same side of the street with himself, and the defendants West and Jackson following behind him in the same direction. When the first shot was fired, he at once looked around, and saw the defendant fire the second shot, and heard Jackson say: "Don't run! don't run!" By that time the deceased reeled around and fell on the sidewalk. This witness further testified that, after the deceased fell, Fred Jackson ran to him, raised up his coat, and placed a pistol by the side of the deceased's body. About this time the defendant West turned to the witness and said: "Damn you; don't go to him." Dr. Abeken, who held the post mortem examination over the body of the deceased, testified that death resulted from a gunshot wound, which entered the front part of the deceased's body and penetrated the heart. He gave it as his opinion that this wound produced instant death, or was sufficient, at least, to have prevented the deceased from doing anything with his arms or hands. James Lusk testified that when the second shot was fired the deceased fell. This shot was fired by a man on the edge of the sidewalk.

On the part of the defendants, the testimony tended to show that the defendant had had trouble with the deceased on the night of the homicide, and that the deceased was the aggressor; that the defendant was afterwards warned by one Allen Anderson that deceased was looking for him and ready for him. Lonnie Bell testified that he and the defendant, after midnight, were on the southwest corner of Twenty-Third and Morgan, near Brown's saloon, and that he and the defendant and one Fletcher went up Morgan street to get some tobacco, and then returned to the same corner. When they got there, he saw the deceased and Wesley House coming towards them. The deceased had a pistol in his hand, and House had his hand up. This witness ran on east as soon as he saw the gun in the hands of the deceased, and he reached the Chinese restaurant some five minutes before Fletcher, the other party that was with defendant, got there. While in this restaurant, he heard the two shots fired. One Henry Revere testified that some time after midnight on July 30, 1905, he was in Simon Brown's pool room playing pool with one Allen Anderson, when the deceased came into the pool room alone "The deceased had a big gun in his bosom, sized everybody up, and walked out." Shortly afterwards witness and Anderson left the pool room and sat down on the street. There they met the defendant, West, with a man that the witness did not know. He left these parties, and saw the deceased on the sidewalk going east on Morgan street, the deceased having his hand in his bosom. On cross-examination, however, he stated that the deceased had the weapon in his hand down by his side when he came in, but shoved it in his bosom when he went out. Allen Anderson testified to seeing the deceased, Coleman, and House following the defendants, John West and Fletcher, and when they got near to the corner of Twenty-Third and Morgan street the deceased and House rushed after defendant and Fletcher with knives. Later on that night, while witness was seated on the street, the deceased stopped and looked in his face and went on. Ten minutes later the defendant came along, and witness told defendant to be careful, they were looking for him with guns. Fred Jackson, one of the defendants, testified in his own behalf, that about 3 minutes to 1 o'clock that night he came out of 2305...