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tery; and on his trial for murdering her, upon any grade of offense not authorized by several months thereafter, it was held that it the evidence, and it is error to do so. State "might properly be considered by the jury V. Allen, 116 Mo. 548, 22 S. W. 792; State v. on the question of motive." In People v. Herrell, 97 Mo. 105, 10 S. W. 387; State v. Williams, supra, it was held that the prose- Wilson, 88 Mo. 13; State v. Turlington, 102 cution was properly permitted to prove that Mo. 642, 15 S. W. 141. In State v. Starr, some time before the killing of the wife she 38 Mo. 272, it is said "that it is the duty of had complained of her husband as a disor- the court to instruct the jury with reference derly person, and that he was adjudged to to the testimony in the case, and, when the pay two dollars weekly for her support. The evidence all tends to prove one offense, it matters that were held to be admissible as is wrong to mislead the jury by giving inevidence in each of those cases for the pur- structions in relation to a different one." pose of showing a motive for the killing were The instruction only had a tendency to misacts of the deceased, not merely her state- lead the jury, which it is evident from the ments, as in the case at bar. The other facts in this case as disclosed by the record, cases cited in support of the opinion were it did do. Defendant was either guilty of either actions for criminal conversation, or murder in the first degree, or not guilty of civil actions growing out of the domestic.re any offense at all, and the instructions lations of husband and wife, and exceptions should have been confined to that offense. to the general rule. It will thus be seen that Defendant asked the following instructhe principal case is not supported by the tion: "Before the jury can find the defendauthorities cited, nor any other authority ant guilty in this case, they must believe that we have been able to find, and should be from the evidence, beyond all reasonable overruled. The statements of the wife which doubt, that the defendant, on or about the were offered to be proven were not part of 5th day of January, 1894, at the county of the res gestae, as exclamations of pain, nor Buchanan and state of Missouri, willfully, were they with respect to her health, as in deliberately, premeditatedly, on purpose, and Reg. V. Johnson, 2 Car. & K. 331; Goins v. of his malice aforethought, shot, with a reState (Ohio) 21 N. E. 476; State v. Moxley, volving pistol, and killed, the said deceased; 102 Mo. 374, 14 S. W. 969, and 15 S. W. 556. and unless the jury so find they will find See, also, 1 Greenl. Ev. (14th Ed.) $ 102,-and the defendant not guilty, and so return their were properly excluded, and So were her verdict." The court modified the instrucstatements to the effect that she intended to tion by inserting after the words "not kill herself, for the same reasons. She was guilty," "of murder in the first degree," and no party to the prosecution, and the state then gave it as modified; and in this, it is was not bound by anything she may have urged, error was committed. The instrucsaid. McMillen v. State, 13 Mo. 31; Com. tion was evidently drawn upon the theory v. Densmore, 12 Allen, 535; State v. Nocton that defendant was either guilty of murder (No. Sup.) 26 S. W. 551. It will not be seri- of the first degree, or of no offense at all; ously contended that if defendant's wife had and the modification only made it more exbeen living, and he had been indicted for as- plicit, and confined it to that offense in which sault with intent to kill her, anything she there was no error. It is not at all applimight have said in regard to their amicable cable to any degree of manslaughter, and relations would have been admissible against was not before its alteration. the state; and, if not then admissible, the The faet that a note was found in the fact that she was dead at the time of trial bosom of the deceased after her death could did not make such statement permissible. not, for the same reasons that any state

Nor do we think the court committed er ments she may have made have been read ror in excluding the evidence which was of- in evidence, and was not a proper subject fered by the defense tending to show that of comment by counsel before the jury, as deceased was an expert with a pistol. It nothing but vague and uncertain conclusions had no tendency whatever to show that she could have been drawn therefrom. killed herself, or to show that defendant The conduct of the court with respect of rewas not guilty.

marks made by it in connection with various Another contention is that the court erred of its rulings during the trial, and the treatin instructing the jury on manslaughter in ment of counsel *for defendant as well, is the first degree. That there was no evidence severely criticised by them in their brief, whatever upon which to predicate such an because of their effect upon the jury, in prej. instruction is admitted by the attorney gen- udicing their minds against the defendant. eral in his printed brief, but he argues that Some of the remarks of the court, as set of this defendant cannot complain, because, forth in the bill of exceptions, were unseemwe presume, of his conviction of a less of- ly, but evidently not intentionally so. Trials, fense than that of which he was indicted especially of the character of this, where and put upon his trial. We do not under- a human being is upon his trial for his life, stand this to be the law. While, by statute, should be so conducted that no critic, how. It is made the duty of the court to instruct ever astute, could discern any feeling upon upon every phase of the case warranted by the part of the court, or anything that would the evidence, it is not its duty to instruct have the slightest tendency to indicate that the scales of justice were not evenly and the head and neck of him, the said William exactly balanced. It is to be hoped that, Shannon, with a certain shotgun, loaded with upon another trial of the cause, no one con- powder and leaden balls, as aforesaid, he, the nected with it will have cause to complain said Robert Woods, then and there in both of the action of the court in this regard. his hands had and held, with the intent then

The evidence tended strongly to show the and there him, the said William Shannon, op defendant guilty of having willfully, delib- purpose, and of his malice aforethought, to arately, and premeditatedly murdered his kill and murder, against the peace and digniwife, and that unless he did do so he was ty of the state. Edgar B. Woolfolk, Prosenot guilty of any offense. The judgment is cuting Attorney Lincoln County, Mo." The reversed and the cause remanded. All con- prisoner was convicted, and sentenced to the cur.

penitentiary for a term of four years. The errors assigned for reversal will be considered in the order of appellant's brief.

The defendant challenged the sufficiency STATE v. WOODS.

of the indictment, both by his motion to quasb (Supreme Court of Missouri, Division No. 2.

and in his motion in arrest of judgment, for Nov. 5, 1894.)

the reason that it failed to charge that the ASSAULT WITH IxTEXT TO KILL-SUFFICIENCY OF INDICTMENT - EVIDENCE-PREVIOUS QUARREL

assault complained of was committed with a INSTRUCTIONS.

felonious intent, or with an intent feloniously 1. An indictment for assault with intent to kill. The indictment is sufficient. It speto kill, which charges that defendant commit- citically charges the assault to have been comted the assault feloniously, on purpose, and with malice aforethought, "with the intent then

mitted feloniously, on purpose, and with maland there him, the said S., on purpose, and of

ice aforethought, "with the intent then and his malice aforethought, to kill and murder,' there the said William Shannon, on purpose, need not charge that the assault was commil- and of his malice aforethought, to kill and ted with a felonious intent, or with an intent feloniously to kill.

murder.” It was decided as early as the case 2. On trial for assault with intent to kill, of the State v. Comfort (1838) 5 Mo. 357, that where it is showa that the person shot at was in an indictment under the section under standing unarmed in his own yard, talking to

which this indictment was preferred it was a friend, and that defendant got within shooting distance by creeping along the yard fence,

unnecessary to conclude with the words, and that at the time of the shooting the person “with intent feloniously to kill," but that it shot, on the advice of his friend, had started

was sufficient to aver, "with intent to kill." to go into his house, evidence of a difficulty less than an hour before between defendant and the

The ruling in that case was followed in State person shot is inadmissible.

v. Chandler', 24 Mo. 371, and this indictment 3. On trial for assault with intent to kill, is in the identical form expressly approved in where the evidence fully establishes an assault on purpose, with inalice aforethought, and with

State v. Jones, 86 Mo. 623, and State v. Weba deadly weapor, it is not error to refuse to ster, 77 Mo. 566. The intent averred is that charge that the jury may convict of a lower denominated by the statute itself, and ex vi grade of crime. 4. The verdict cannot be impeached by the

termini includes the felonious intent required affidavit of a juror that the time of imprison

to charge a felony, and could not have apment was fixed by each juror writing on a peared any more clearly by the unnecessary piece of paper the number of years he was in favor of and dividing the aggregate by 12.

repetition of the word "feloniously."

2. There was no error in excluding the eviAppeal from circuit court, Lincoln county; dence concerning a previous difficulty which E. M. Hughes, Judge.

had occurred on the same day between deRobert Woods was cunvicted of assault with fendant and William Shannon. After that Intent to kill, and appeals. Affirmed.

difficulty they separated, and Shannon went W'm. R. Young, for appellant R. F. Walk- to his home, and was standing, unarmed, in er, Atty. Gen., for the State.

the yard to his dwelling house, talking to the

witness Finley. The defendant was seen by GANTT, P. J. The indictment is in the fol- Finley stealthily creeping along the yard fence, lowing words: "State of Missouri, County of with a double-barreled gun in his hands. Fin. Lincoln-ss.: In the circuit court of Lincoln ley a lvised Shannon he had better go into the county, Missouri, at the spring term, A. D. house, and Shannon immediately started to 1893. The grand jurors for the state of Mis- do so, when the defendant, Woods, shot him souri, duly impaneled, sworn, and charged to in the back of the head. Defendant at one inquire within and for the body of the county time stated this was an hour after the first of Lincoln, and state of Missouri, upon their difficulty, and at another that it was only a oath charge and present that Robert Woods, few minutes, or so long only as was neces. on or about the 8th day of January, A. D. sary for him to go to his home, a half mile 1893, at the county of Lincoln, in the state of distant, get his gun, and then creep up the Missouri, in and upon one William Shannon, fence to Shannon's liouse, to shoot him. Unfeloniously, on purpose, aud of his malice der the circumstances, the former difficulty aforethought, did make an assault, and did was no justification of his conduct, and the then and there on purpose, and of his malice court correctly excluded it. aforethought, feloniously shoot him, the said 3. There was nothing in the evidence calling William Shannon, in and upon the back of l for an instruction on the lower grade for an assault to kill, under Rev. St. $ 3190. The 3d day of August, 1893, at Macon county, evidence fully established a case of an assault loosen and remove a rail on the Wabash Railon purpose, and with malice aforethought, road, “with the intent then and there, willand with a deadly we-spon; and under such fully, maliciously, and feloniously, to obcircumstances the court should not invite the struct the passage of a train of cars, then jury to find for a lower grade than is made next to come along said track, and did then by the evidence.

and there, in manner and by the acts afore4. The court properly refused to receive the said, willfully, maliciously, and feloniously, affidavits of the juror to impeach his verdict obstruct the passage of a train of cars carryby showing that the different jurors each ing passengers along and over said railroad, placed the number of years for defendant's against the peace and dignity of the state." imprisonment on a piece of paper, and then The defendants are each about 18 years of added the several numbers, and divided the age. On the night of the 3d of August, 1893, sum by 12, to determine his punishment. The the defendant Harley Johns signaled and paper was not even found in the jury room, stopped the passenger train coming from the and, if it had been, with no other explana- north near a bridge some three-quarters of a tion, it would not imp...ich the verdict, and, niile north of Atlanta, a station on the Waexcluding this juror's affidavit, there was bash Railroad, in Macon county. When the none The judgment is affirmed. All concur. train stopped, Johns told the engineer and

conductor that train wreckers had been interfering with the track; that he had over

heard them talking; and that he had come STATE V. JOHNS et al.

to signal and warn the train. The engineer (Supreme Court of Missouri, Division No. 2. and Johns walked down the track, and the Nov. 5, 1894.)

train slowed down after them; and, at a OBSTRUCTING TRAINI-ARGUMENTS OF COUNSEL. point about one-fourth of a mile south from

1. On trial of defendants under Rev. St. $ the place where the train was stopped, they 3588, making it a felony for any person to will- found a loose rail. It was the east rail, and fully and maliciously tear up, or remove any

the spikes had been drawn at the north end portion of a railroad track with intent to obstruct the passage of cars, it appeared that

of the rail, and this end of the rail was pushthey had loosened a rail, and then warned the ed out of line some 15 or 18 inches. The rail engineer of the next train in time to avoid the

was put in place, and the train passed on, danger with the intention of obtaining some reward from the company for preventing a

having been delayed about 30 minutes. The wreck. Held, that the offense was complete officers of the railroad company instituted when the rail was removed, although there was an investigation, and, prior to the arrest of no intent to derail the train or imperil the lives of the passengers.

the defendants, they both made a confession, 2. On trial for obstructing a train, counsel

admitting that they had drawn the spikes, for the state may, in the argument to the jury, and turned out the end of the rail, and then properly discuss and comment on the peril to

arranged to signal and stop the train be which the passengers were exposed by the acts of defendants in removing a rail.

fore it reached the place where the end of

the rail was moved out. There is no conflict Appeal from circuit court, Macon county;

of evidence as to the intent and purpose of Andrew Ellison, Judge.

the defendants. It was to remove the rail, Harley Johns and S. O. Reynolds were

and then notify the engineer of the next jointly convicted of feloniously obstructing

train, and thus commend themselves to the the passage of a railroad train, and appeal.

railroad officials, to have them believe that Affirmed.

they had rendered a signal and timely sery. Dysart & Mitchell, for appellants. R. F. ice, and thereby to obtain some reward, by Walker, Atty. Gen., Morton Jourdan, and R. way of promotion in the service of the comW. Barrow, for the State.

pany, or otherwise. Johns was or had been

in the service of the company, and his father GANTT, P. J. At the September term, was, and still is, station agent at Atlanta. 1893, of the Macon circuit court, defendants He had access to the office at Atlanta, and were indicted under section 3588, Rev. St. knew the time of the arrival and departure Mo. 1889, which provides that "every per- of the trains at that town. The evidence son who shall willfully and maliciously place shows that defendants took steps to insure any obstructions by stones, logs, or other the stoppage of the train before it reached things on the track of any railroad, or shall the place of removal. The defendant Reyn. tear up or remove any portion of a railroad, olds had not been in the service of the comor the works thereof, with intent to obstruct pany, but he was to share in whatever rethe passage of a car or cars thereon, or throw ward and emolument that should be obtainthem off the track, shall upon conviction be ed by Johns. The defendants proved a good imprisoned in the penitentiary not exceeding general reputation, both for honesty and fair twenty years." They were jointly tried and dealing, and for truth and veracity, prior to convicted at the same term, and sentenced the indictment. The court, of its own moto imprisonment in the penitentiary for two tion, instructed the jury as follows: If the years, from which they appeal. The indict- jury believe from the evidence that on or ment charges that the defendants did on the about the 3d day of August, 1893, at the county of Macon and state of Missouri, Har- Jure the railroad, or kill and cripple its emley Johns and S. O. Reynolds willfully and ployés and passengers. To this contention maliciously did tear up and remove an iron we cannot yield our assent. To constitute rail from its place in the track of the Wa- a crime, there must be a criminal intent, bash Railroad Company, with the intent to but this intent need not include all the evil obstruct the passage of a train of cars along consequences that may or naturally will folsaid railroad, and in fact did obstruct a low a given criminal act. It was perfectly train, then you should find them guilty, and competent for the legislature to declare that assess the punishment of each at imprison- an act so violative of the rights both of the ment in the penitentiary for not less than railroad company and its passengers and two years, nor more than twenty years." employés, and so fraught with peril to them, "The jury are instructed that it is not neces- as this evidence discloses was committed sary for the state to prove that defendants by these defendants, should be felony. Sucb intended at the time to wreck the train, nor an act is wrongful and unlawful in itself; throw it from the track, nor to actually en- and, when this act of tearing up and removdanger the lives of any persons on the train; ing this rail was intentionally done, the crimbut if you believe from the evidence that the inal intent-the intent to do a wrongful, undefendants removed said rail from its place, lawful act-existed, and the offense denounand then intended to and did give the dan- ced by the statute was complete. The mere ger signal, and stop the train in safety be- fact that defendants not only intentionally fore it reached the torn-up rail, for the pur- removed the rail, in violation of the statute, pose of fraudulently obtaining a reward but also intended thereby to place the comfrom the railroad company or the passen- pany under an obligation to them to give gers, and that they intended, by removing them lucrative employments, and the pasthis rail, to obstruct the passage of a train, sengers to pay them a reward for a supposed and did so obstruct its passage for about virtuous act, in no sense deprives the act of thirty minutes, then they should find the de- removing the rail of its criminal character, fendants guilty,"-and refused to instruct but, on the contrary, aggravates it. These the jury, as prayed by defendants, that the ulterior purposes were wicked and frauduguilt or innocence of the defendants depend. lent in themselves, but they were not needed ed upon the intent with which they removed to make the offense complete; that was done the rail and stopped the train; and to ac- when they intentionally did the act which the

law declared was a v. ,

73 some notoriety and favor, or to recommend We find no error in the instructions given, or themselves to the company. Over the ob- in the action of the court in refusing those jection of the defendants, the court permit- asked by defendants. ted the counsel for the state to argue and 2. The remaining assignment is that the comment to the jury upon the great danger court erred in permitting counsel for the and peril to which persons on the train had state, in his argument, to argue and comment been exposed by the conduct of the defend- upon the great danger and peril to whicb ants, and refused to permit counsel for de- the passengers on the railroad cars were exfendants, in reply, to read the two sections posed by the conduct of defendants, because in question, -3588 and 3589,--and comment the indictment was under section 3588, and on the same, to show that section 3589 and not under section 3589, Rev. St. 1889. The the peril to passengers and other persons counsel for defendants in these public prose were not involved in the case.

cutions seek to narrow the rights of the counIt is earnestly insisted by counsel for de- sel for the state in argument to exceeuingly fendants that as defendants removed the rail narrow limits. In this case it would be from the track only for the purpose of af- hard to conceive of a reasonable discussion fording themselves an opportunity of com- of this case that would omit the reason for mending themselves to the railroad company, the statute itself. It is true, defendants and thereby procuring a job or employment claim there was no crime in their act, beby the company, and perhaps a reward from cause of their precautions to avert the nat- . the passengers, under the mistaken view that ural consequences of it; but their contention they were indebted to defendants for avert- need not restrict the state to such a view. Ing a wreck of the train, and not with the It must be borne in mind that this train malicious intent of derailing the train, and would reach this broken rail at a late hour imperiling the lives and limbs of the pas- of the night, and these defendants had assengers and operatives, defendants cannot be sumed the burden of warning the engineer convicted under the evidence of the offense of the danger which they had created. The charged. In other words, it is assumed that, attention of the engineer might have been to constitute this statutory felony, the de- attracted in another direction until too late fendants must not only have had the design to avoid the danger, to say nothing of the of removing the rail, which constituted an es- accidents that might have befallen defendsential part of the railroad track, and actual- ants to prevent their giving the signals. ly removed it, and obstructed the train, but Moreover, they were looking for one train they must have had the specific intent to in- only. They had taken no precautions to learn

whether trains from the other direction might not also pass over this obstruction, and as to such no signals whatever were provided. All these risks were existing and all caused by their unlawful and willful act; and it was entirely proper that the jury should consider them to arrive at a proper conception of the criminal character of defendants' conduct, notwithstanding their evidence as to their subsequent efforts to counteract it. It was not necessary that they should have been indicted under section 3589 in order to authorize a discussion of the perils to which defendants had subjected the agents and passengers of the road, nor was any error committed in refusing to permit counsel for defendants to read the two sections, 3588 and 3589, to the jury. It was the province of the court to instruct the jury as to all the law of the case; and if counsel for defendants desired specially an instruction that this prosecution was under section 3588, and not under 3389, and pointing out the essential differences between the two enactments, it was their duty to ask it, and not to read the sections to the jury. It was the duty of the court to instruct on the case made, and not to negative one that was not attempted to be made. The judgment is affirmed. All concur.

STATE v. DETTMER. (Supreme Court of Missouri, Division No. 2.

Nov. 5, 1894.)
HOMICIDE-INSTRUCTIONS AS TO MANSLAUGHTER-

EVIDENCE OF MALICE PREVIOUS QUARREL
Provocation.

1. The denial of an application for a continuance is within the sound discretion of the court.

2. On a prosecution for murder, it was proper to admit evidence that the hostility between deceased and defendant had begun two weeks before the killing, when deceased took the part of an old man whom defendant had attacked, on which occasion deceased's remonstrances brought on a fight resulting to the disadvantage of defendant.

3. To justify a homicide on the ground of self-defense, defendant must have done everything in his power, consistent with his safety, to avoid the danger, and avert the necessity for the killing.

4. Where a witness' testimony is contrary to the physical facts of the case, neither the court nor the jury is required to believe it, as regards those facts.

5. Where malice is shown to have been harbored by defendant against the deceased, and a fresh provocation to commit the crime is received by defendant, such provocation is to be disregarded, unless the murderous purpose can be shown to have been abandoned before the crime was committed.

6. Where defendant, on the night of the first difficulty between himself and deceased, and two weeks before the last difficulty, made threats of revenge, repeated at least twice afterwards, and down almost to the night of the crime, and that on that night he refused to loan his pistol, saying that he "might want to use it" himself, it was not error to refuse to instruct the jury as to manslaughter in the fourth de

gree, which is : "the involuntary killing of another by a weapon

in the heat of pass sion,"

Appeal from criminal court, Buchanan county; William S. Herndon, Judge.

Prosecution by the state of Missouri against William Dettmer, for murder. From a judgment of conviction, defendant appeals. Affirmed.

Murder in the first degree was the accusation against defendant, and on that he was found guilty of the second degree of that crime, and his punished fixed at 10 years in the penitentiary, and he appeals to this court. The homicide of which defendant was convicted occurred at Dick Porter's saloon, in the city of St. Joseph, on the night of February 27, 1892. From a mass of irrelevant testimony, these facts in regard to the killing are obtained: Two weeks before the homicide, the defendant, William Dettmer, and Frank Breeze, the deceased, had a diffi culty, in which the defendant was worsted. No weapons were used by either party. As the defendant left the room he remarked, in the hearing of those who accompanied him to the door, “I will get thats of a bbefore a week.” Similar threats were made by defendant to others down to a short time before Breeze was killed. On the night of the killing the deceased was in the saloon with a number of others, and was about to engage in a game of pool, or had just commenced the game, when the defendant came in. While the deceased was standing at the pool table, the defendant began to abuse him with foul epithets, keeping at the same time his hand on his pistol in his pocket, when the deceased said in reply that he wanted nothing to do with defendant, and for him to go away, but if the defendant would go out into the yard he would whip him. The defendant continued his abuse, when the de ceased again told him to go away; that he did not want to have any trouble with him, -at which time the barkeeper began to re monstrate with the defendant and insisted on his keeping quiet. Just at this juncture the defendant drew a revolver and fired at Breeze, who was standing near the pool-table. The latter, apprehending that the de fendant was about to shoot at him, dodged, or attempted to dodge, down behind the pool table; and the first shot fired by the defendant missed him, and the ball entered the wall of the room, behind where the parties were standing. Immediately after the first shot was fired the deceased straightened up, wheeled half around, facing towards the door and from the defendant, and fled from him. The defendant then fired the second shot while Breeze was running away from him, and with his back turned, which struck the deceased between the middle lobe of the left ear and the base of the skull, and ranged upward and inward towards the frontal bone, lodging near the right eye. From the effect of this wound the deceased died al

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