The State v. Bates
| Decision Date | 06 February 1912 |
| Citation | 144 S.W. 99,239 Mo. 507 |
| Parties | THE STATE v. JULIUS BATES, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. C. Hitchcock Judge.
Reversed and remanded.
Chas P. Johnson, Jos. G. Williams and I. A. Rollins for appellant.
Manslaughter in the fourth degree. See R. S. 1909, Sec. 4467. The testimony in this case does not justify an instruction of murder in the first degree, but as the appellant was not convicted of that crime he can not under our decisions complain. The nature of the provocation which reduces the homicide to manslaughter in every case depends upon the circumstances, facts and conditions existing in each particular case; and in speaking of that this court has held that "legal, lawful, adequate and reasonable" when used as adjectives qualifying provocations are synonymous. As a general rule with very few exceptions it takes an assault or personal violence to constitute the provocation that will reduce the homicide to manslaughter. State v McKinze, 177 Mo. 712. When two men are engaged in a common assault upon each other, and after the assault has been made and during the fight one is killed; the court must instruct the jury on manslaughter in the fourth degree. State v. Herman, 117 Mo. 637; State v. Ellis, 74 Mo. 215; State v. Dickerman, 75 Mo. 570; State v. Sebastian, 215 Mo. 81. The trial court erred in failing to instruct the jury in writing upon questions of law in the case, necessary for their information in giving their verdict. This duty is made imperative, whether proper instructions are asked by counsel or not. The failure to so instruct in case of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial, or warrant a reversal. State v. Moxley, 102 Mo. 374; State v. Palmor, 88 Mo. 568; State v. Banks, 73 Mo. 592; State v. Branstetter, 65 Mo. 149; State v. Mahly, 68 Mo. 315.
Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State.
There is no evidence in this record entitling appellant to an instruction on manslaughter in the fourth degree. It is well settled that the instructions of the court should always be limited to the facts offered in evidence, and should not include features not developed at the trial. The rule that instructions must be predicated upon the facts developed at the trial applies to criminal cases. State v. Hargraves, 188 Mo. 337; State v. Calloway, 154 Mo. 91; State v. Heath, 237 Mo. 235. Courts should not invite the compromise of crime by instructing on degrees not warranted by the evidence. On the part of the State the testimony clearly establishes that, without the slightest provocation, appellant stabbed and killed the deceased. At no time, according to the State's evidence, did deceased make any hostile demonstrations or attempt to assault appellant. He merely refused to comply with appellant's command to leave the rear platform and enter the car. The words uttered by him on this occasion certainly furnish no basis for a provocation sufficient to reduce the killing to manslaughter. The rule is well settled that: State v. Gartrell, 171 Mo. 516; State v. Sharp, 233 Mo. 269. The only evidence offered in behalf of the defense, except character evidence, was that of appellant, and, in detailing the facts, he gave not the slightest intimation that he was actuated by any impulse save that of self-defense. In all this record there is not a syllable of testimony tending to show that he killed deceased while under a heat of passion aroused by a sudden and lawful provocation. If the jury believed the evidence on the part of the State, appellant was clearly guilty of murder in either the first or second degree. If, on the contrary, they believed the evidence on the part of appellant, he was not guilty of any offense, but was justified in the killing. We respectfully submit that there is no testimony in this case warranting an instruction on fourth degree manslaughter. State v. Gartrell, 171 Mo. 489; State v. Meadows, 156 Mo. 110; State v. Lewis, 118 Mo. 82; State v. Ramsey, 82 Mo. 137; State v. Dunn, 80 Mo. 690; State v. McCollum, 119 Mo. 495.
Having been convicted in the circuit court of the city of St. Louis of murder in the second degree and sentenced to the penitentiary for a term of ten years, defendant has appealed.
Defendant and deceased, Joseph Driskell, were entire strangers and the killing occurred upon a crowded street car upon which both were passengers. Deceased was standing upon the rear platform of the car when defendant boarded it and took his position at the door and in front of deceased, who was in front of and leaning against the first of two rails running across the platform dividing it into three sections. The defendant and deceased were very near each other and the sudden jerking of the car as it started up caused defendant to "brush" or "bump" against deceased, and out of this trivial incident grew the tragedy.
The evidence offered by the prosecution was fully sufficient to support the verdict returned, though the State's witnesses did not agree in some important particulars.
The testimony of the witness who seems to have occupied the best position to see what happened and hear what was said was to the effect that defendant was holding to the handle on the car door and (doubtless after the motion of the car had thrown the two against each other) said to deceased: "Why don't you go inside?" Deceased replied: "I don't have to go inside; I have been standing here all this while, you get inside." Deceased then added: "Don't lean or rub against me." Defendant then started to turn facing deceased and, opening his knife, said to him: "Don't talk that way to me." As defendant turned Driskell "grabbed at him," the two men clinched, and defendant went down backward into the car, deceased on top of him. A bystander seized defendant's right arm and the witness lifted deceased to his feet.
Other witnesses gave somewhat different versions of the affair, one declaring that defendant stabbed deceased as he turned facing him and that deceased was not down at any time. Another, that he, the witness, seized defendant from behind and threw him backward to the car floor and that deceased was bending over the defendant as the latter lay upon his back. It appeared that two of deceased's companions took defendant's knife from him, one holding his right arm and the other placing his foot upon his neck and face and jerking the knife out of his hand, thereby cutting defendant's fingers slightly.
Deceased died from the effects of a knife wound which pierced the left ventricle of the heart. Another slight wound was found upon the head back of the left ear. Despite his wounds, the testimony is that deceased stood in his former position leaning against the rail, while the car ran two blocks, and then, with some assistance, walked from the car to the sidewalk, where he sat down and died.
On the part of the defense, there was evidence that defendant's reputation for peace, quiet, sobriety and industry was good.
It appeared from the testimony of the policeman who arrested him, that defendant's lips were bruised and bleeding and his fingers had been cut.
Defendant testified that when the car jerked and caused him to brush against deceased, the latter asked him "what in the hell was the matter with him," and when he tried to explain and asked deceased to excuse him, deceased said: "Like hell I will excuse you; you damn black son-of-a-bitch, stand up there." At this juncture, the conductor came back for defendant's fare and passed on. Deceased then said: "Get off this car and I will fix you." Defendant replied that he had paid his fare, and "didn't have no right to get off the car," whereupon deceased called defendant a vile name and struck him in the mouth with his fist and immediately a man seized him (defendant) from behind and jerked him down in the car, deceased leaping upon him and commencing to choke him with both hands. Defendant's testimony is further to the effect that not until he was down and deceased upon him, choking him, did he draw his knife; that he then got his knife out of his pocket; that he had to do something because deceased "was killing him;" that having taken out his knife he "made a blow somehow;" that someone seized his right hand and another put his foot upon his neck, and seizing the knife, jerked it away, thereby cutting his fingers. He further testified that when he got to his feet he "didn't have no forethought, because he was crowded on and scared to death."
The testimony of the defendant discloses a typical case of manslaughter as that offense is defined in the text-books and reports. Why the instruction requested was refused it is difficult to understand. The trial court should not have thus, by implication, excluded from the consideration of the jury any part of the defendant's testimony.
According to that testimony, defendant, after being called vile names was...
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