the v. Kennade

• Citation: 26 S.W. 347,121 Mo. 405
• Parties: The State v. Kennade, Appellant
• Decision Date: 08 May 1894
• Court: United States State Supreme Court of Missouri

26 S.W. 347

121 Mo. 405

The State v. Kennade, Appellant

Supreme Court of Missouri, Second Division

May 8, 1894

Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.

The defendant, a German, indicted for the murder of Cora Thompson, a negress, by shooting her with a pistol, was convicted of that crime in the second degree, his punishment being assessed at twenty years' imprisonment in the penitentiary, and he appeals to this court.

The testimony on behalf of the prosecution was substantially this: On the afternoon of March 20, 1893, defendant was in a saloon on Eighth street, near Clark avenue, in the city of St. Louis. The saloon was called the "Tunnel house," and was frequented principally by negroes. In the rear of the saloon, fronting on an alley, was a small house, one room of which was occupied by the deceased. Defendant was playing pool in the saloon with a negro named Darlington. A young negro named Morris came in and was challenged to play by defendant; upon his declining on the score of having no money, defendant agreed to pay for the game, and they began to play. Morris won, and defendant proposed to play for a quarter. Another negro present "staked" Morris, and they played several games doubling the stakes each time, Morris winning every game until the amount at stake was four dollars, and the stakeholder paid over the money to Morris, who started to leave the saloon. Defendant went up to him, and without saying a word, slapped him, knocked off his hat, and, putting his hand into his hip pocket, drew out a pistol. Morris ran out the rear door, through a gangway, into the alley near deceased's house, and there asked a colored woman to go into the saloon and get his hat for him. Meanwhile defendant put up his pistol, kicked Morris' hat over the floor took a drink at the bar, and, in company with Darlington went out on Eighth street to the corner of Clark avenue, and thence to the aforesaid alley. When they reached the corner of the alley Morris was standing in the rear of the saloon, waiting for his hat. Defendant immediately started toward him, putting his hand in his pistol pocket, and Morris ran past the deceased's house to a vacant lot, and thence back to Eighth street.

The deceased was in her room at the time, entertaining a visitor, a negro woman named Reynolds. The door of the room was immediately on the alley, about a foot above the level of the pavement, and had a single stone step in front of it. Hearing a noise in the alley, and some one shouting, "Run, run!" both women went to the door, and just then defendant came up to the door and cried out, "Let me in!" Deceased said, "What do you want in here?" Defendant replied, "I want to get that nigger out of here." Deceased said, "There is no nigger in here; you may look in, but you can't come in." He tried to force his way in, placing his foot on the stone step, when deceased picked up a seashell from her bureau, and raising it in her hand, said, "If you come in here, I'll knock you in the head." Defendant stepped back, and the woman closed the door; he drew out his pistol, advanced, fired twice through the door, and then forced the door open and fired directly at the woman, who fell, shot through the heart, and died almost instantly.

The defendant, testifying in his own behalf, stated substantially as follows: He dropped into the "Tunnel house" to speak to the barkeeper, who was a friend of his; he was himself a bartender, going on duty at five o'clock in the afternoon; he had a revolver in his pocket, belonging to another man, on which he had loaned a dollar, and had been carrying it two or three weeks. He got to playing with Morris, and lost $ 4, when he concluded it was time to stop; Morris wanted him to play some more, and caught hold of him, and tried to pull him over to the pool table, when he slapped Morris with the back of his hand; Morris ran out the back way, and his hat "flew off;" he kicked the hat out the back door, and then went up to the bar and talked to the barkeeper several minutes; he denied drawing the pistol out in the saloon. When he left and reached the corner of the alley he saw Morris, and started toward him for the purpose of asking him to come over to his own saloon and play with him, so he could have a chance to win his money back, but Morris ran away (defendant said) into the deceased's house; he went up to the door and saw deceased standing there; he asked her, "where did that nigger go that ran in here?" she told him he wasn't in there, then picked up a seashell from behind her, and said to him, "You son of a bitch, get away from me, or I'll kill you with this!" He "got scared" and pulled out a police whistle and blew it; he put one foot on the step; he saw a white man in the room standing behind deceased; "it seemed to him like" this man handed her a "gun," and she threw the gun up at his face, and snapped the trigger twice at him; the weapon did not explode; he was a foot and a half or two feet from her, right in front of the door; he then pulled out his gun and shot at her; she fell back into the house; the door was shut; he was "scared of 'em coming out," so he shot through the door twice and moved away from there.

On cross-examination he stated that the door of the house was about half-way open, and Cora stood in the half-open door facing him; he could not say whether the pistol was handed to her or not, but she snapped it at him twice, holding it in her left hand while she still held the seashell in her right, and with the left hand raised; the doorsill was about a foot higher than the level of the alley; they were only two or three feet apart; the woman never moved her position until she fell, after his shot; he was standing toward the south side of the door, facing northwest toward her, and she was facing southeast directly toward him.

The autopsy revealed that the deceased was of delicate frame and above medium height, being five feet, four inches tall; the bullet entered on the left side of the chest about two inches to the left of the median line, between the third and fourth ribs, passing diagonally across the chest to the right, penetrating the left side of the heart near the entrance of the aorta, perforated the middle lobe of the right lung and struck the fifth rib on the right side.

Having laid the foundation for impeachment, the state offered in rebuttal a written statement made and signed by defendant in the police office about a half hour after his arrest, as follows: "I was playing pool with a young colored man; I beat him at the game, when, instead of paying for the game he had lost, he ran out of the saloon by the rear; * * * when I got to the alley, I saw him standing in the alley south of me; as soon as he saw me he ran into a house in the alley; * * * I walked toward the house to see where he had gone to; when I got to the house I looked in, when a colored woman came to the door with a seashell in her hand and threatened me, and told me I had better get out, in reply to my question as to where the colored man had gone to; as I still stood there, she went back and immediately came out with a revolver which she pointed at me, when I drew my own revolver and shot her, as I did not want to take any chances; at the time I shot her I was walking away south on the alley toward Spruce street, and was perhaps about ten or fifteen steps away; she then disappeared in the doorway.

* "And an unknown white man came to the door, revolver in hand. He came out into the alley and started towards me. He snapped the revolver at me, but it did not go off and seeing that I was in danger of being shot by him and not wishing to take any chances, I fired at him and he fell down in the alley. I fired four shots at the woman and two shots at the man. Almost immediately after the last shooting I was arrested by an officer and brought to the Four Courts. This statement is made of my own free will without any compulsion from any one.

"(Signed) Louis Kennade.

"Witnessed by

"Wm. H. Williams, Detec. Dept.

"Thomas Conlon, Police Off. Cent. Dis.

"James J. Rice, Police Off. Fifth Dis.

"Archie T. Edmonstone."

Defendant objected to this statement being read in evidence without the whole of it were read; but the court refused to allow to be read only that portion of the statement which is above the asterisk. The foregoing, except some testimony as to the good character of defendant, is substantially all the material testimony offered.

The instructions of the court were on murder in the first and second degrees, manslaughter in the fourth degree; on the theory of imperfect self-defense, on self-defense, defendant's testimony, credibility of witnesses, good character and reasonable doubt. Defendant asked the court to give certain instructions which were refused. No exceptions were saved by defendant either to the giving of instructions or to their refusal.

Affirmed.

Charles T. Noland for appellant.

R. F Walker, Attorney General, and C. O. Bishop ...