The State v. King
| Decision Date | 14 May 1907 |
| Parties | THE STATE v. JOHN KING, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.
Affirmed.
John E Bowcock for appellant.
The error complained by by appellant arises from the failure and refusal on the part of the court to instruct the jury as to the effect of a prior conspiracy followed by an assault made upon the appellant at the instigation of the deceased, as characterizing the feeling and the intentions of deceased towards appellant, as well as explanatory of the justifiableness on the part of appellant to act upon a slighter appearance of danger than he would where threats only had been made against him unaccompanied by any attempt to put the same into execution, the court simply leaving the jury under the impression that threats and an assault, no matter how dangerous the assault was intended to have been were synonymous in law, whereas it was the duty of the court to have fully instructed the jury upon all the law applicable to all the material facts in the case as required by Laws of 1901, page 140. State v. Patrick, 107 Mo. 147; State v. Nelson, 118 Mo. 124; State v. Weakly, 178 Mo. 413.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) Defendant's counsel made objections to certain threats which State's witness Douglass testified that defendant made against deceased. This witness testified that said threat was made a week or two before Thanksgiving, and this homicide was committed on the 28th day of November. It is clear, therefore, that the threat was sufficiently recent to be of evidentiary value in this case. State v. Callaway, 154 Mo. 91; Underhill on Crim. Evid., secs. 328 and 333; 1 Wigmore on Evidence, sec. 108. (2) No instruction on the subject of self-defense was necessary, as the evidence fails to show that, in any aspect of the case, defendant acted in self-defense. The two eyewitnesses, who were called in behalf of the State, testified that defendant shot deceased in the back; that she fell on her face to the sidewalk, and that defendant continued to shoot. Dr. Abeken testified to finding four wounds in the body of deceased, all of which entered from the rear. While the defendant testified to the effort deceased made to draw a pistol, that she was turning as if to come towards him; yet his evidence is contradicted by the physical facts in the case. If deceased had turned to come towards defendant, or if she was turning around, the bullets could not possibly have entered her back in the way they did. Upon the reasonableness of the testimony, this court, in State v. Dettmer, 124 Mo. 435, said: "When witnesses attempt to establish a certain theory by their testimony, they must first look to it well that their testimony must not go counter to the physical facts in the case; for if it does, neither courts nor juries are required to stultify themselves by disbelieving the immutable physical facts in the case, and so we have said on a number of occasions." State v. Turlington, 102 Mo. 642; State v. Bryant, 102 Mo. 24; State v. Anderson, 89 Mo. 332; State v. Nelson, 118 Mo. 124; State v. Nocton, 121 Mo. 537; State v. Fraga, 97 S.W. 900. But even if this court shall conclude that an instruction on self-defense was proper, it will be seen that the State's instruction on that subject was full and fair, and all that the defendant was entitled to. State v. Gee, 85 Mo. 647; State v. Pennington, 146 Mo. 35. It was not error to refuse an instruction asked by defendant, when another instruction had been given by the court on the same subject and embodying the same proposition of law. (3) The evidence is more than sufficient to justify a conviction of the defendant of murder in the first degree. State v. Reed, 117 Mo. 604; State v. Garth, 164 Mo. 553; State v. Callaway, 154 Mo. 91; State v. Eaton, 191 Mo. 51; State v. Worton, 139 Mo. 526.
From a conviction of murder in the first degree in the circuit court of the city of St. Louis, the defendant has appealed to this court. The prosecution was begun by an information filed by the circuit attorney on January 5, 1906, in which the defendant was charged with the murder of Hallie Douglas, a young woman about twenty years of age, on the 28th of November, 1905. The defendant, the deceased, and nearly all of the witnesses were negroes.
On the part of the State the testimony tended to show that the defendant and the deceased had been on friendly and intimate terms for some time, and until within a few days of the homicide. On the afternoon of the homicide, the deceased was at the residence of Max Anderson, another negro, on Gratiot street. At that time Max Anderson, Bud Anderson, Chas. Franklin, Hallie Douglas and Mabel Douglas, all negroes, were at the house of Max Anderson and his mother on Gratiot street. The defendant passed this house and looked in at the window, and in a few minutes returned and knocked on the door. It seems that Max Anderson suspected that defendant's mission was anything but friendly and before opening the door got his pistol and then admitted the defendant. The defendant at once addressed himself to the deceased, Hallie Douglas, and requested her to come out of the house, as he wanted to see her, and she replied, "Go ahead, I am coming out," but did not start at once to go. At this point the defendant had his hand in his pocket and started to draw a pistol; when he made this motion, Max Anderson drew his pistol on the defendant and ordered Franklin to take the gun out of defendant's pocket and said to the defendant, "What do you mean by coming in here and pulling out a gun?" and struck defendant on the side of the head with the pistol, knocking defendant to the floor and discharging Anderson's pistol. Defendant was not shot but it seems he thought he was. Anderson then commanded him to get up, that he was not hurt, and after some parley either Anderson or Franklin withdrew the cartridges from the pistol of defendant and gave it back to him. Defendant then left Anderson's house. The deceased and her sister Mabel also left the house and went to the Four Courts to swear out a warrant for the defendant, but reached the office of the warrant clerk too late in the afternoon and they then started to return to their home. The defendant followed them down to the Four Courts and quarrelled with them and said he would give them something to swear out a warrant for. The deceased and her sister started up Clark avenue to Thirteenth street and defendant walked along the street with them. The deceased and her sister then continued their way towards their home and when they reached Twenty-first and Papin streets they discovered defendant coming from Twenty-second and Papin towards the bridge on Papin street; when they discovered him he was hurrying towards them, and they ran over on Twenty-first street to Chouteau avenue and on Chouteau to the grocery store of Class on the corner of Chouteau and Twenty-second; there the deceased and her sister separated, the deceased going into the grocery store and her sister going on to her home. The deceased remained in this store until her mother came. While the deceased was waiting in the grocery store, the defendant came in and approached her where she was sitting by the counter, and was heard by Mr. Elmore, a clerk in the store, to say that he intended to have a warrant issued for the arrest of the deceased. Beyond this nothing unusual occurred in the store. When the deceased's mother came up to the front door of the store she either called or motioned to the deceased to come to her and the deceased got up off of the stool, walked to the front door and got out on the sidewalk and turned with her mother to go west in the direction of their home. The defendant also went out of the front door of the grocery store and started in the opposite direction; after taking a few steps, the defendant wheeled around, drew his pistol and followed the deceased and her mother, and when within about five feet of the deceased, shot her in the back, and when she fell to the sidewalk, stood over her and fired four more shots into her person. Death was almost instantaneous.
The evidence on the part of the State was conclusive that the deceased had no pistol, said nothing about a pistol, made no threats or motion indicating that she was trying to draw one. After killing the deceased the defendant walked to the corner of Twenty-second street and Chouteau, turned on Twenty-second street and went about a block distant, broke down his pistol and threw out the empty shells. He then went to a near-by police station and surrendered himself. Autopsy was held on the body of the deceased by doctor Abeken, the surgeon in charge at the coroner's office, from which it appeared that the deceased was shot in the back, twice in the forearm and once through the upper part of the body through the chest. The shot that entered the back from the back and came out through the left side of the neck was the mortal wound from which the deceased died. The physician testified that an examination of the body showed that it was wholly normal in all other respects. There was also evidence that the defendant had made divers threats towards the deceased to the effect that, if she turned him down, he would kill her.
The defendant testified in his own behalf and detailed the difficulty at Max Anderson's house on the afternoon of the homicide and claimed that Anderson was the aggressor, and that defendant had gone to the Four Courts for the purpose of having Anderson and his household arrested, but found the clerk's office closed, and that on...
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