The State v. O'Reilly

• Decision Date: 12 February 1895
• Citation: 29 S.W. 577,126 Mo. 597
• Parties: The State v. O'Reilly, Appellant
• Court: Missouri Supreme Court

29 S.W. 577

126 Mo. 597

The State v. O'Reilly, Appellant

Supreme Court of Missouri, Second Division

February 12, 1895

Appeal from Montgomery Circuit Court.-- Hon. E. M. Hughes, Judge.

Affirmed.

""C.P. & J. D. Johnson and ""J.D. Barnet for appellant.

(1) The evidence in the case as a whole does not support the verdict.The testimony does not present any elements of murder in the second degree.There should have been no conviction above the degree of manslaughter in the fourth degree.(2)The court erred in admitting as evidence before the jury the photograph of the interior of the saloon on which were grouped three prearranged figures to indicate the actors in the homicide depriving the defendant of the right of cross-examination with reference to the accuracy of the positions assumed and giving undue weight to the theory of part of the witnesses as to the manner in which the homicide occurred, and this error of the court was repeated by the refusal of the court to afterward give the instruction twice asked by the defendant withdrawing such picture from the jury.(3) Although the photograph of the interior of the saloon may have been admissible in evidence to indicate the physical surroundings it was improper in the court to allow the picture to go to the jury as a whole, without an instruction indicating to the jury how far they had a right to consider the picture as evidence.(4) The general instruction given by the court of its own motion is erroneous in giving any instruction as to murder in the second degree.

""R.F. Walker, Attorney General, and ""C.O. Bishop for the state.

(1) The indictment is in proper form and there is no error apparent upon the record.(2) The instructions fully covered the case and were favorable to defendant.There was no self-defense in the case upon the testimony of defendant, who persisted in the statement that the shooting was wholly unintentional and accidental.""State v. Smith, 111 Mo. 406.It was upon this theory that the court instructed for manslaughter, and the only theory which warranted such instruction.(3) The only evidence offered by defendant which was excluded was that tending to show that at the time of the shooting he was almost insensible from drink, and that he was not only powerless but very drunk.This was clearly incompetent.""State v. Ramsey, 82 Mo. 133; ""State v. Carter, 98 Mo. 176.(4) The testimony offered by the state in rebuttal was clearly competent.The witness Coudry having undertaken to describe the occurrence in the saloon, as an eye-witness, the state had the undoubted right to impeach him by showing that he was not there at all, but at another place.(5) The photograph offered in evidence by the state was competent.From time immemorial it has been customary to use diagrams and plans in the trial of criminal as well as civil cases, and where shown to be fairly correct have always been held proper for exhibition to the jury.Wharton's Crim. Evidence, sec. 544 ""et seq.;People v. Jackson,111 N.Y. 362;3 Rice on Evidence, sec. 103, p. 154.

OPINION

Burgess, J.

At the March term, 1893, of the St. Louis criminal courtthe defendant was indicted for murder in the first degree, charged with shooting with a pistol, and killing, one John J. Schmidt in said city on the twenty-second day of November, 1890.On application of defendant the venue of the cause was changed to the circuit court of Montgomery county, where, upon trial had to a jury, he was found guilty of murder in the second degree and his punishment assessed at ten years' imprisonment in the penitentiary.The cause is in this court on his appeal.

Deceased was the son of Capt. Joseph Schmidt, who, on the twenty-second day of November, 1890, kept a grocery and saloon in the city of St. Louis.About 5:30 on the evening of that day Capt. Schmidt was behind the bar in the saloon when defendant and three others came in and took some beer.About half an hour afterward defendant came in again, accompanied by a little girl, he having in his hand a pitcher which he placed upon the counter and asked for ten cents' worth of beer.Schmidt drew the beer and handed the pitcher to defendant who looked into the pitcher and remarked, "You better give me another nickel's worth, that aint enough for my girl over the street.Schmidt then filled the pitcher and set it on the counter, when defendant remarked "I will pay you for this some other day when I come to Carondelet."About that time deceased came into the saloon behind the bar and stood alongside his father.At some remark of Capt. Schmidt, defendant took from his pocket something which he threw upon the counter, at the same time making to Schmidt a dirty, vulgar remark.The deceased pushed the beer over to defendant and told him to take it.Defendant then said "I will settle with you sons of bitches right now," drew his pistol and shot deceased, the bullet entering the upper part of the abdomen, from the effects of which he died on the twenty-ninth of November following the shooting.

Defendant proved a good character for peace and quiet, and introduced evidence tending to show that when he had received the pitcher full of beer from Captain Schmidt, he said to the latter "in a joking spirit,""what will you do with a man that has no money?"In reply to which Schmidt said that he would not give him the beer.Appellant then took from his pocket a half-dollar, and with his thumb and forefinger flipped or spun it on the counter, and it rolled off the counter behind.Schmidt charged defendant with having thrown the coin in his face, and when this was denied, called appellant a liar, came from behind the counter, caught him by the collar of his coat and said he would put him out, struck him in the chest and on his head and called to Johnnie (who stood at the money drawer) to bring "what was in the drawer" and he would fix the Irish son-of-a-bitch; and then appellant drew his revolver and fired.

Defendant testified in his own behalf as follows: "After he(Captain Schmidt) struck me, I felt that I was going to be injured and I pushed my hand down behind me.He still had hold of me.I got the revolver up and raised the trigger on the hammer.In doing so at this very time the hammer fell and exploded a cartridge.I was trying at this time to cope with Captain Schmidt, who was attacking me.Immediately after that I became perfectly unconscious of further proceedings in that house.My last recollection, the moment I had the revolver in that position that I indicated, I took it out then and raised the hammer in order to intimidate him from attacking me; that moment, from what cause I do not know or understand, I became perfectly unconscious.I did not level or attempt to level the pistol at Johnnie Schmidt at any time or to shoot him.At the time the pistol exploded, I intended to use it on Captain Schmidt; I did not intend to injure Johnnie; the trigger accidentally fell down and exploded the cartridge; I had no reason to discharge the revolver...