68 Mo. App. 435 | Mo. Ct. App. | 1897
To justify the shooting, the defendant introduced the testimony of himself and some three others, members of his family, which tended to prove that they were aroused in the night by a rattling of the front store door as if someone was trying to break in. That thereupon the seventeen-year-old son of the defendant went out onto an uncovered porch over the store door and warned the intruder to leave, at the same time firing a pistol into the air. Father, son, and daughter then, went down stairs into the store where they testified they found a prop to the door partially removed, though the door was still closed. The defendant then, which was about ten minutes after the first shot, went up to the second floor and out onto a side porch, from which he saw an object at or near the store door. He says that he again warned the party to leave, which caution the defendant says was not heeded, and he then fired three shots, one of which took effect as before stated, and the other two were found next morning lodged in the walk in front of the door. During all this time, according to the testimony of all defendant’s witnesses, the party at the door was silent and motionless.
From other evidence in the case it appears that plaintiff had been about the village all the preceding day, visiting a saloon next door to defendant’s store, and had become so intoxicated as to scarcely be able to walk. It seems that about midnight he straggled about and fell prostrate on the platform or walk in front of de
The jury found for the plaintiff in the gross sum of $800, $300 of which was awarded as compensatory, and $500 as punitive or exemplary damages, and from a judgment in accordance with this verdict defendant, appealed.
We fail to see the materiality of this evidence; it was properly excluded.
In answer to the third point, it is sufficient to say that at common law the defendant’s wife was not a competent witness for her husband, nor has the disability been removed, except in the cases provided in our statutes, and that there is nothing here to bring defendant’s wife within these exceptions.
“5. If the jury find from the evidence that on October 14, 1895, the defendant had reason to believe and did believe that a burglary or other unwarranted attack upon his house was about to be committed or was being committed by the plaintiff herein and so believing fired his pistol with the sole purpose of resist*440 ing said attack, and from no other purpose, then the verdict of the jury must be for defendant even though the jury do find from the evidence that such shot or shots caused the injury complained of, unless the jury should further find that such action on part of defendant was unnecessary and as no reasonable man under the circumstances would be guilty of.”
Plaintiff's instructions were based on a like theory, that defendant had the right to shoot the plaintiff if it was done in the necessary defense of his person, family, or property; but if the jury found “that defendant unnecessarily, wantonly, or maliciously, or without cause or excuse, shot and wounded the plaintiff” then the .plaintiff ought to recover; and was entitled not only to such damages as were compensatory, but that they might assess against the defendant such further sum as would operate as a punishment to defendant and as a warning to others.
If any fault is to be found in the court’s instructions, they were too liberal toward the defendant. While the law will justify a party in using such force as is reasonably necessary to protect himself, home, and family from the unlawful assault or intrusion of another, yet when the assailed shall go beyond the limits of what shall reasonably appear as necessary protection he then himself becomes a trespasser, and will be held responsible for the use of such unnecessary force. Cooley on Torts [2 Ed.], 190.
The instructions, when all read together as one charge, fairly presented the law of the case; and since in our opinion the defendant had a fair trial of the issues involved, the judgment must be affirmed. It is so ordered.