State v. Wieners

• Decision Date: 31 October 1877
• Citation: 66 Mo. 13
• Parties: THE STATE v. WIENERS, APPELLANT.
• Court: Missouri Supreme Court

66 Mo. 13

THE STATE

v.WIENERS, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals

Boyle & Delehanty for appellant.

1. The circuit court erred in omitting to charge thc jury as to murder in the second degree. Wag. Stat. 1106, § 30; Hardy v. State, 7 Mo. 609; State v. Matthews, 20 Mo. 55; State v. Byrne, 24 Mo. 155; State v. Schoenwald, 31 Mo. 147; State v. Bryant, 55 Mo. 75; 12 Ga. 142; Foster v. People 50 N. Y. 601; Com. v. York, 9 Met. 94, 115; Gardiner v. People, 6 Park. Cr. Rep. 190; 16 N. Y. 61; Lead. Crim. Cas. (2 Ed.) 332; 2 Black. Com. (Shars. Ed.) 198; Bratton v. State, 10 Humph. 110; Robbins v. State, 8 Ohio St. 169; Atkinson v. State, 20 Tex. 531; Numbers Ch. 35; Deuteronomy Ch. 19; Bower v. State, 5 Mo. 380; Com. v. Crause, 4 Clark (Penn. L. J.) 503; Fouts v. State, 4 Green. (Iowa) 500; Territory v. Stears 2 Mont. 324; Craft v. State, 3 Kan. 451; Bivens v. State, 11 Ark. 455; Fahnestock v. State, 23 Ind. 231; People v. Batting, 49 N. Y. 398; State v. Ingold, 4 Jones 222; Whart. Am. Law of Hom. 369; Shoemaker v. State, 12 Ohio 44, 53; Com. v. McEwen, 1 Clark (Penn. L. J.) 140.

2. The bones of the deceased and the bullet found imbedded therein were not proper evidence, and should not have been exhibited to the jury. It has been an immemorial usage in criminal trials in this country and Great Britain, to introduce in evidence skulls, bones, clothing, etc., of a deceased person where the corpus delicti is in doubt; but we have yet to find a single case or principle, after diligent research, sustaining the production of such evidence when the killing is admitted, as charged in the indictment, and more especially as in the case at bar, when the coroner witness indicated the precise location of the wound and direction of the bullet, on the neck of the presiding judge in the trial court. Steph. Dig. Ev. Art. 140; State v. Brown, 1 Mo. App. Rep. 87; State v. Holme, 54 Mo. 160; Clark v. Vorce, 19 Wend. 232.

3. The ultra professional conduct of the circuit attorney in conferring before the trial with Crum, one of the witnesses for the defense, worked a surprise upon defendant's counsel, and prejudiced defendant. Gra. & Wat. on New Trial 874, 875 and note; Ibid 1009; Hilliard on New Trial, (2 Ed.) 521, 544; Todd v. State, 25 Ind. 213; Phillips v. State, 29 Ga. 105; Peers v. Davis, 29 Mo. 184; Carey v. King, 5 Ga. 75; Com. v. Benesh, Thatch. Crim. Cas. 687.

4. The statement of the circuit attorney in his argument to the jury that defendant admitted the murder, prejudiced defendant upon the trial, and is sufficient ground for a reversal. 2 Broom & Had. Com. 486; Gould v. Moore, 40 N. Y. 395; State v. Kring, 64 Mo. 591; State v. Reilly, decided by the St. Louis Court of Appeals (1877); Sullivan v. People, 31 Mich. 4; Jenkins v. N. C. Ore Dres. Co. 65 N. C. 564; Devries v. Haywood, 63 N. C. 53; Com. v. Smith, 30 Leg. Intell. 201, (160); 1 Bright. (Pa.) Dig. 506.J. L. Smith, Attorney-General, for the State.

1. The criminal court did not err in refusing to instruct the jury as to murder in the second degree. The testimony shows clearly that the homicide was committed under such circumstances as to constitute the crime of murder in the first degree, and no other, and the criminal court therefore very properly, by its instructions, confined the attention of the jury to that grade of homicide. State v. Lane, 64 Mo. 319; State v. Foster, 61 Mo. 549; Wag. Stat. p. 445, §§ 1, 2; State v. Schoenwald, 31 Mo. 147.

2. The criminal court did not err in overruling the motion for a new trial on the ground, as therein alleged, of surprise. Because if the witness Crum had testified to every fact stated in the affidavit and motion in relation to previous threats of the deceased, and the defendant and other witnesses had testified that such threats had been communicated to defendant previous to said homicide, still such testimony could not have been admitted, or, if admitted, would have been excluded, for the reason, that the testimony of all the witnesses shows that defendant, by his own voluntary conduct, sought the difficulty in which deceased was killed, and that the defendant was the sole aggressor therein. State v. Hays, 23 Mo. 287; State v. Brown, 63 Mo. 439.

3. The criminal court did not err in admitting the testimony of the coroner and the exhibition of a portion of the vertebral column of the deceased. Gardiner v. People, 6 Parker Crim. R. 155. (See page 200.)

L. B. Beach, Circuit Attorney, for the State.

1. Is there any element of murder in the second degree in this case? If there is not, then the court was right in confining the attention of the jury to murder in the first degree. An inspection of the evidence will show this case to be a clear case of murder in the first degree, without an extenuating or justifying circumstance, without palliation or excuse. The indictment is for murder in the first degree, and is founded on paragraph 1, article 2, Wag. Stat. 445. Now, what is the legal meaning of the words used in this section as applied to this case? Willfully, means intentional, that is, not accidental. Deliberately, means in a cool state of the blood, that is, not in a heat of passion caused by a lawful provocation. Premeditatedly, means thought of beforehand, any length of time however short. Provocation to be sufficient to mitigate or extenuate homicide, as applicable to this case, should amount to personal violence or injury to the defendant--mere words of reproach, however abusive, degrading or grievous they may be, are no provocation sufficient to free the party killing from the guilt of murder

This was a willful, delibera and premeditated killing without lawful provocation. Defendant and deceased were both employed at the Theatre Comique in the city of St. Louis, defendant as private watchman and deceased as assistant barkeeper. Defendant in size, was almost a giant, being in height at least six feet, and weighing between 200 and 225 pounds. Deceased was almost a child as compared with defendant, weighing only about 120 pounds, and being only five feet high. The bar where deceased was employed, was down stairs, and the theatre up stairs, and also back of the bar. Some one called at the office of the theatre for defendant, and no one else being handy, deceased was ordered to go up stairs and inform defendant that he was wanted at the office, which errand was duly performed by deceased. Defendant then came down, and having found that he had been called down in consequence of some person having called whom he disliked, he at once went into the bar where deceased was attending to his duties, and commenced upbraiding and calling deceased low names, for having called him down. Deceased said that he was not to blame, or could not help it, as he did not know who had called, and had simply obeyed orders in going up and informing defendant that he was wanted at the office. Deceased, during the conversation in question used towards defendant some of the low names that defendant was using towards him. All this time defendant stood on the outside of the counter, and deceased behind the counter attending to his duties. Defendant then pulled out his pistol and tried to shoot the deceased, saying at the same time, “You God damned son of a bitch, I will kill you,” and would undoubtedly have done so, but for the interference of friends. Up to this time, deceased, in no manner, shape or form, had given any provocation to defendant. Then some minutes afterward defendant still being on the aggressive, and calling deceased low names, reached over and struck deceased a blow in the face with his fist, and then, and not till then, did deceased do anything to protect himself. While smarting under the blow, he simply reached down and picked up an ordinary soda-water bottle, but did not use it. Almost immediately after defendant had struck deceased, he, defendant, drew his pistol and tried to shoot deceased, and two friends were unable to hold him, for he slips around his left hand and shoots the deceased dead upon the spot. Deceased had no weapon upon him, nor did he throw the bottle, but simply stood upon the defensive at the mercy of the defendant, who was seeking his life. Defendant immediately fled, remarking as he ran, “the God damned son of a bitch.” There was no personal violence or injury to defendant. His life was not menaced or in danger; no one was fussing with him; no one attacking him; he was on the scene by his own free and voluntary act; he was using all the violence and threats; before he shot, he had committed an assault to kill, which of itself is a felony, and then he had followed that up by a battery on deceased; he was seeking a difficulty and urging it upon the deceased, only endeavoring to draw his victim into some overt act. From the time he first endeavored to shoot the deceased, to the time that he actually did shoot him, some fifteen minutes elapsed; he had ample time then to deliberate; he had had no lawful provocation, no lawful heat of passion, and therefore the act was deliberate.

Defendant did not ask for an instruction upon the second degree. The bill of exceptions, the evidence, the affidavit for a continuance, the affidavits of the defendant's counsel, all show that the only defense set up and pleaded was self-defense. Defendant's counsel announced all through the trial that their plea was self-defense. To use their own words, as will be seen in the record: “We admit the killing, but claim that it was done in self-defense.”

2. It is claimed by defendant's counsel that the vertebral column ought not to have been exhibited to the jury, because “they had admitted the killing in manner and form as charged in the indictment.” The State had the right to submit all the facts to the jury, the time, the place, the circumstances, and every fact tending to show all the elements of murder in the first degree. The officer of the State must be the one to judge as to the...