The State v. Gieseke
| Decision Date | 18 February 1908 |
| Citation | 108 S.W. 525,209 Mo. 331 |
| Parties | THE STATE v. WALTER GIESEKE, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.
Affirmed.
Joseph McCoy, John B. Denvir, Jr., and S. S. Bass for appellant.
(1) It has been declared again and again, and it is one of the well-settled principles of the law of homicide in this State as well as elsewhere, that "grevious and degrading words of reproach would amount to 'just provocation' as contradistinguished from lawful and reasonable provocation," and consequently what words of reproach and attendant circumstances will be deemed a just cause of provocation, and constitute the homicide murder in the second degree, is in every case a question of law for the court; and whether the state of mind necessary to make the killing the lowest grade of murder was superinduced by such just provocation, is a question of fact for the jury. Here the jury were told that words would not constitute just cause or provocation on part of defendant, when the only question that the jury was to determine was whether if the words had been used they caused such state of mind as to reduce to a lower grade of murder. State v. Grugin, 147 Mo. 39; State v. Ellis, 74 Mo. 207. (2) It is not true as a matter of law that one loses the right of the plea of self-defense if he sought or brought on a difficulty, as the instruction declares. One may enter or bring on a difficulty and be entitled to defend himself on the plea of self-defense, or he may be guilty of manslaughter. State v. Patterson, 159 Mo. 560; State v. Goddard, 146 Mo. 177; State v. Rapp, 142 Mo. 443; State v. Addler, 146 Mo. 18; State v. Vaughan, 144 Mo. 514; State v. Lewis, 118 Mo. 84. The court in the trial of this case entirely overlooked the principle laid down by this court in the case of State v. Partlow, 90 Mo. 608. (3) The trial court committed prejudicial error in failing to define "heat of passion." State v. Strong, 153 Mo. 548; State v. Skaggs, 159 Mo. 581.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) Defendant was not entitled to a preliminary examination, as a matter of right; but said preliminary examination is "a mere expedient to prevent the suspected person from escaping, or for preserving the evidence or keeping the witnesses within control." 1 Bishop's Crim. Pro. (3 Ed.), sec. 239a; State v. Brooks, 92 Mo. 571. (2) Defendant did not withdraw his plea of not guilty at the time he filed his plea in abatement and motion to quash, or at any other time, hence this matter has been waived. (3) The instructions given are full and fair, and exceedingly liberal towards defendant. The "rough words" said to have been used by deceased were not sufficient to reduce the offense down to the crime of manslaughter. State v. Ballance, 207 Mo. 607. (4) No error was committed in giving the State's instruction on the subject of the defendant entering into the difficulty with a felonious intent, as said instruction, even in a broader form, has been approved. State v. Bailey, 190 Mo. 257.
On February 5, 1906, the grand jury of the city of St. Louis returned an indictment against the defendant charging him with murder in the first degree. At the January term, 1907, the defendant was tried and convicted of murder in the second degree and his punishment assessed at ten years' imprisonment in the penitentiary. His motions for new trial and in arrest of judgment were heard and overruled, and the defendant appeals.
The State's evidence tended to prove that the defendant was a butcher by occupation and lived in the city of St. Louis. The deceased, Charles Schaefer, and his wife occupied rooms in the second story of an apartment house in said city. The mother of the defendant had done some sewing for the wife of the deceased, and had been delayed in the collection of her account for the same, which amounted to $ 1.20. About seven o'clock on the evening of November 8, 1905, the defendant, his mother and a younger brother called at the home of the deceased and found him and his wife eating supper. After asking for the money due the mother of the defendant, the wife of the deceased said she was poor and could not pay it all at once, but desired to be allowed to pay it in two or three payments. This was not satisfactory to the defendant's mother and some words were exchanged between the parties. The deceased told his wife to push defendant's mother down the stairs and ordered the defendant to leave the place. About that time the defendant drew his pistol upon the deceased, and the latter left the house, saying he was going to get a policeman to arrest the defendant, and walked through a nearby saloon. The defendant waited on the porch of the house of the deceased for awhile, and when asked by the deceased's wife if he intended to shoot her husband replied, "It is none of your d -- business." After sitting on the porch for sometime with his pistol in his hand, the defendant got up and went into the same saloon through which the deceased had gone, and took two or three drinks of liquor. The deceased had inquired for a policeman in the saloon, and had gone out of another door. The defendant stated to a man in the saloon that he had had trouble with the man upstairs trying to collect for some clothing that his mother had sewed for them; that his younger brother had been there to collect the bill and the deceased had threatened to throw him and his mother down the stairs if either of them ever came there again; that he would not stand for that, and he was going to get even with that man. Defendant then took his pistol out of one pocket and put it into another pocket and walked out of the saloon. In a few minutes the deceased returned to his porch, saying he could not find a policeman, and the defendant said, "I have got you, you son of a b --." The deceased tried to grab the defendant's pistol and the defendant fired twice at the deceased, but missed him, the struggle after the pistol was fired continued, and the defendant backed down the stairs out into the yard where he fired three more shots, the third shot taking effect in the body of the deceased. The deceased then went into his room, an ambulance was sent for and he was taken to the City Hospital where he died two days later. The defendant, after the shooting, returned to the saloon, took out his pistol and laid it on the bar saying: "I got my man." After taking another drink the defendant stepped out on the sidewalk where two policemen arrested him. A post-mortem examination was held on the body of the deceased and the physicians testified that the deceased's death was the result of a gun-shot wound, which entered the abdomen two and one-half inches to the left, and about one inch and a half above the navel. The bullet went straight through the body of the deceased.
On the part of the defendant the evidence discloses that he was twenty-four years old and lived with his mother and brother; that he was engaged in business at 1430 Bremen avenue in St. Louis; that he went from his place of business with his mother and brother on the evening of the homicide, to the residence of the deceased; that he carried a revolver with him because he had the receipts of his day's business, amounting to between sixty-five and seventy-five dollars, with him at the time; that defendant, his mother and brother went into the room occupied by the deceased and his wife at the invitation of the deceased and presented the bill for the sewing; that an argument arose and the defendant and his mother were ordered out of the place; that the deceased pushed both of them out, took hold of defendant's mother, called her names and tried to push her over the banisters; that defendant objected and deceased went into the room and got a knife with a blade about ten inches long; that defendant then drew his revolver and told the deceased to lay down the knife, which deceased did, and then defendant put up his revolver; that deceased then said he was going to get a policeman, and went out for one; that the defendant in a short time did the same thing; that the deceased came back first and waited for the defendant at the foot of the stairs leading to deceased's room; that the defendant came back, approached the said stairs and called to his mother; that the deceased who had returned in the meantime was concealed from the defendant by the corner of the porch; that as defendant came near the deceased, the deceased began striking him on the head and struck him some fifteen times and knocked him to the ground; that they had then gone back about twenty-five feet from the place where the deceased first struck defendant. The deceased had defendant down and was beating and choking him and defendant drew his revolver and shot the deceased; that the defendant was so stunned that he could not get up for some minutes, but presently got up and walked into the saloon and gave his pistol to one of the men, and waited until the policemen came and arrested him. There was also some evidence to prove that the defendant's general reputation for peacefulness and good order was good.
The evidence on the part of the State in rebuttal tended to prove that there were no wounds or bruises on the defendant's head and neck at the time that he came into the saloon after the shooting, nor the next morning at the police station. There was also evidence that the deceased did not have a knife at the time of the difficulty in the room as testified to by the defendant's witnesses.
The indictment in this case is sufficient both in form and substance and such as has been approved by this...
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