The State v. Diller

• Decision Date: 27 October 1902
• Parties: THE STATE v. EDWARD DILLER, Appellant
• Court: Missouri Supreme Court

70 S.W. 139

170 Mo. 1

THE STATE v. EDWARD DILLER, Appellant

Supreme Court of Missouri, Second Division

October 27, 1902

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.

Affirmed.

Charles P. Johnson for appellant.

(1) It was the duty of the court to admit all the evidence concerning the acts, conduct and speech of both Cunningham and Toomey which would enable the jury to learn what the true feeling of Toomey was toward Diller; and the court should have instructed the jury as to the value of such testimony in determining the issues submitted to them. (2) Now, as to the admission of the paper, in the State's rebuttal testimony, which purported to be the record of the coroner's inquest and the evidence adduced there: One of the principal witnesses for the defense, Robert J. Reel, was repeatedly questioned as to whether he had not testified thus and so at the coroner's inquest, and Reel had repeatedly answered that he did not remember what he had testified to at the coroner's inquest, and several times answered substantially as follows: "If it is down there that way I suppose I did testify that way." The defense objected to the questions and excepted, but the point now pressed upon the court is this: Was it not error for the court to permit the introduction in evidence of a paper purporting to be the record of the coroner's inquest, without that paper being identified in any way? (3) It was the duty of the court to have instructed for manslaughter. The defense properly excepted at the time to the failure of the court to fully and properly instruct the jury. When a man intends to shoot another with a pistol he points it at his victim, but he does not "strike at" him just as he is about to fire. The testimony of Bassler, Reel and Russell corroborates defendant's claim that he did not intend to shoot. It will not do to say this is a case of perfect self-defense or murder. The jury may have believed that Toomey was about to attack Diller and that Diller acted in self-defense, but used more force than was necessary if he intentionally fired the pistol. The jury may have believed Diller's claim that he did not intentionally fire the shot, but also believed him to be criminally negligent in trying to strike an adversary with a loaded pistol.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) Intentional killing is presumed to be murder in second degree. The jury was so instructed by the court in instruction 2. State v. Holme, 54 Mo. 153; State v. Underwood, 57 Mo. 40; State v. Eaton, 75 Mo 586; State v. McKenzie, 102 Mo. 620. To raise a presumption of murder in second degree, the homicide must have been intentional. The jury was so instructed. State v. Phelps, 76 Mo. 319; State v. Curtis, 70 Mo. 594; State v. Bohanon, 76 Mo. 562. The instruction on the question of an intentional killing being presumed to be murder in the second degree, is as follows: "You are further instructed that if you find from the evidence that the defendant intentionally killed the said Toomey by shooting him with a pistol, at the time and place mentioned in the foregoing instruction, then the law presumes such killing was murder in the second degree in the absence of proof to the contrary, and it devolves upon the defendant to meet or repel such presumption, unless such presumption is met or repelled by the evidence introduced on behalf of the State." This instruction fully conforms to the rulings of this court on the question. State v. Jones, 78 Mo. 278; State v. Duncan, 116 Mo. 288; State v. Eaton, 75 Mo. 586. (2) No error can be found in the court's instruction on the law of self-defense or other propositions instructed upon. The instructions were full and complete, covering every point raised by the evidence. It is true, defendant excepted to the action of the court in failing to instruct "upon all the law of the case," but nowhere does he call attention to the point wherein such refusal was indulged in. This was a frivolous objection, and will not be seriously considered by defendant himself.

OPINION

BURGESS, J.

At the April term, 1901, of the circuit court of the city of St. Louis, the defendant was convicted of murder in the second degree, and his punishment fixed at ten years' imprisonment in the penitentiary for having theretofore, at said city, shot and killed with a pistol one Edward Toomey.

Defendant appeals.

It appears from the record that on January 9, 1898, while in the saloon of one Smith in the city of St. Louis, Tony Furst and one Cunningham, made a wager as to which could throw the other down, and placed the wager in the hands of defendant Diller, as stakeholder, who decided the bet in favor of Furst, and turned the money over to him. Cunningham was dissatisfied with the result and demanded his money back.

On the...