State v. Williams

• Decision Date: 31 January 1905
• Citation: 84 S.W. 924,186 Mo. 128
• Parties: STATE v. WILLIAMS.
• Court: Missouri Supreme Court

84 S.W. 924

186 Mo. 128

STATE v. WILLIAMS.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

HOMICIDE—GRADES OF OFFENSE — EVIDENCE— SUFFICIENCY—QUESTIONS FOR JURY— APPEAL—ERRORS REVIEWABLE.

1. One who kills another, who is approaching in a friendly manner, with no weapon in his hand, and making peaceable overtures, by shooting at him both at close range, and after he has fled across the street and into another's house, is guilty of murder in the first degree.

2. One who intentionally and premeditatedly kills another with a deadly weapon, but while smarting under the insult and passion aroused by vile epithets spoken of him in his presence

and hearing by deceased, is guilty of murder in the second degree.

3. Where there is evidence to support both first and second degree murder, it is proper to submit both to the jury.

4. One who killed another, who had made a serious threat against him, and who, in addition to using insulting epithets, had opened his knife and was rushing upon the slayer, who, discovering the knife, shot to protect himself from a murderous assault, was guilty of no grade of homicide, but was simply exercising his right of self-defense.

5. Where, in homicide, the evidence raises the issues of first and second degree murder, and of a killing in self-defense, the determination of the degree of crime or the absence of all crime is within the province of the jury, whose finding will not be interfered with by an appellate court.

6. A charge in a motion for new trial that the circuit attorney made a certain statement in his argument does not show that such statement was made, but the matter must be shown by a bill of exceptions.

7. Conduct of the prosecuting attorney in misstating the law was not before the Supreme Court for review where the lower court made no ruling on the matter, and no exception was taken to its failure to rule.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Fred Williams was convicted of homicide, and appeals. Affirmed.

R. J. Raymond, for appellant. E. C. Crow, Atty. Gen., and C. D. Corum, for the State.

GANTT, J.

This is an appeal from a sentence by the circuit court of the city of St. Louis. The defendant was indicted on the 3d day of November, 1903, for the murder of Luther Lewis, in said city, on the evening of August 3, 1903. The deceased and defendant were negro men, and the scene of the homicide was a section locally known as "Bad Land Alley," between Lucas and Morgan streets and Thirteenth and Fourteenth streets, in St. Louis. On the night of the homicide, and for some eight months prior thereto, the defendant made his home at the residence of Dora Booker, also a negress, at 1323½ Linden street, in said city. He was cohabiting with a daughter of Dora Booker —Paulina—under the guise of a common-law marriage. The deceased also lodged in that neighborhood during that summer. He had worked on the boats on the river, and was in the habit of loafing in the vicinity in the afternoon and evenings after working. On the evening of August 3, 1903, the Booker family and others of their negro friends, including Luther Lewis, were sitting in front of the Booker home, 1323½ Linden street, singing plantation melodies and drinking beer. The defendant had been for some time, and was that day, employed at Scullin & Gallagher's Iron Works. He had returned to the Booker residence just before the usual supper time, and, after washing himself had gone out, and returned and ate his supper. He then left again, and an hour or two later came back with three companions, and went inside of the house and played cards for awhile, and then they all left again. After they left, the deceased came to the Booker residence and sat down with the family. He sat next to Paulina. Her sister Marie and her brother were in the immediate neighborhood, and the mother, Dora, either stood or sat in the front door. While this party were thus located, singing and enjoying themselves, the defendant and several companions returned to this narrow street or alley and approached the Booker house. Almost immediately upon reaching the scene, the defendant walked up to the different members of the party, and looked into their faces until he came to Luther Lewis. Standing before Luther, he said to him, "Luther, what you doing, setting here talking to my woman?" to which deceased responded, "I wasn't talking to your woman. I was singing." Thereupon Marie Booker spoke up and said, "Fred, don't start no fuss here in front of Mamma's door;" and defendant said, "I ain't fussing. I am only talking." At this point the mother, Dora Booker, got up and told Luther to get up and go into Queenie's, the next house to hers. Dora Booker testified she did this because she thought defendant was going to start a racket there. She told Luther to go into Queenie's because she had noticed he stopped there before this time. She testified defendant was intoxicated at the time, and she knew he had a pistol. Luther was sober. Defendant further inquired what Luther had said, and Luther told him what he had said didn't concern him, and went up to defendant and placed his hand on his shoulder, whereupon defendant asked him what he had in his hand, and Luther said, "I ain't got even a cigarette paper." All the witnesses agree that deceased was at this time in his shirt sleeves. Immediately after deceased put his hand on defendant's shoulder, defendant began to pull a revolver out of his pants pocket, and to back a step or two. At first the pistol caught in his pocket, and Dora Booker stepped to defendant's side and continued to remonstrate with defendant, and at the same time to urge the deceased to go into Queenie's. Defendant, having disengaged his revolver, began at once to fire at deceased. After the first shot, deceased turned and ran across the alley. The defendant fired four shots at him—the last as he entered the door of Emma Steward's house, on the opposite side of the alley. Two of these shots struck deceased, and one inflicted a mortal wound, from which he died next day at the City Hospital. One bullet went through the thigh of deceased. The other entered the left groin, ranged upward, passed through the belly, cutting the intestines five times, and lodged on the other side. The police officer, Callahan, testified: He heard the shooting, and ran at once to the scene of the homicide, and found deceased in Steward's house, groaning and crying, and examined his person, and found no weapon of any kind on him. That something was said about his having a knife, but he had no knife on his person or about him. Immediately after the shooting the defendant fled, and was apprehended at Newport, on the Illinois side of the river, on the 5th of August, 1903. He caught the defendant after chasing him down to the levee. When arrested, he was told that he was arrested for killing Luther Lewis, and expressed surprise that he had killed him. He didn't think he had shot him seriously, but said he had shot him. There was an attempt to show deceased was of a turbulent, dangerous character; but the officer of that beat testified he had never known him to be in a difficulty, but had seen him intoxicated several times. The defendant was shown to have been an industrious man. On the part of defendant, Paulina Booker testified that as she sat by deceased that evening, in front of her mother's house, they were all singing, and, when defendant came into the alley, just prior to the shooting of deceased, deceased said to some man who was with him, "Here comes the s____n of b____ now, and when I get through with him he will have a plenty;" and she spoke up and said, "What's the matter, Luther? Are you in trouble?" and he said, "No;" and she said, "There ain't any use in raising trouble;" and he said, "That's my business." "Any time I get in trouble with anybody, I never get caught up with." And by that time Fred came up and said, "What's that you said?" and Luther answered, "It's none of your business. It didn't concern you." Defendant again asked him, "What's the matter?" and he again told him it was none of his business. She says at this point she stepped into the house to call Fred, and tell him Luther had a white-handled knife, and, when Fred started into the house, Luther jumped in between him and the door, and her mother called to Luther to go into Queenie's, and not to have any trouble; but Luther stood between defendant and the door, and defendant couldn't get into the door, and deceased was rushing upon defendant, and defendant asked him what he had in his hand, and deceased made him no answer; and at this point Jim Meek, another negro, handed defendant a revolver, and defendant shot deceased. She testified Fred was not intoxicated. She testified she didn't know whether deceased referred to defendant when he said, "Here he comes now, and when I get through with him he will have enough." Luther was still sitting down when defendant came up. She also testified that when Fred, the defendant, was coming up the alley, she saw deceased take his knife out, and open it and stick it in his right sleeve. He was in his shirt sleeves. He went across the alley and got it from Brock. She ran after the first shot, and didn't see the remainder of the difficulty. Her evidence was supported by another negro woman as to the remark, "Here he comes now, and when I get through with him he will have enough," and to the fact that deceased opened the...