86 Mo. 309 | Mo. | 1885
Lead Opinion
— The defendants were indicted in the Carroll circuit court for the murder of John Rea, and, on a trial, were convicted of murder in the second degree
The defendant Baugh and Rea had occupied a cabin together, but had a difficulty, which resulted in their separation, Rea leaving Baugh in possession of the cabin and of some furniture belonging to Rea. Baugh had made threats that if Rea ever came back to the cabin he “would stop him at the door.” To another witness, that if Rea ever came to his house, ‘£ he would never get away alive.” On the morning of the eighth of April, 1884, Baugh went over to see Anderson, who is his cousin, and who was sick, and asked him to go home with him. There is evidence tending to prove that Baugh expected Rea to come to his cabin that afternoon for his goods. Anderson accompanied Baugh home, and about six o’ clock that afternoon, Rea went to the cabin and was-killed near and in front of the cabin door by the defendant Anderson.
The testimony of Anderson and Baugh, if true, made a clear case of self-defence. It was to the effect that Rea came and knocked at the door of the cabin, and was-asked by Baugh who it was, and, answering, was told by Baugh that there had been strife between them and he did not wish' him to come into the cabin, but Anderson said let him come in, and thereupon Rea entered and commenced cutting Baugh with a knife, who ran out of the cabin followed by Rea, and when Anderson went to-the door, he turned back and commencd firing upon Anderson, who got a gun from a rack near the door and shot him.
The following instructions given for the state are-complained of: *
“ 3. If the jury believe from all the evidence in the case, beyond a reasonable doubt, that the defendants are guilty of murder in the first degree or second degree, as these offences have been defined in these instructions, but have a doubt as to the degree of offence of which the*316 •defendants are guilty, the jury will give them the benefit •of such doubt, and find them guilty of the less offence.”
“4. If the jury believe, beyond a reasonable doubt, that the defendant Anderson is guilty of either degree of murder, as defined by these instructions, but entertaining a reasonable doubt as to the guilt of defendant .Baugh, then they may convict the said Anderson and .•acquit the said Baugh.”
“8. In considering what the defendants have said •.since the fatal shooting, if you find they have said anything in relation thereto, you should consider it all together. They are entitled to the benefit of what they :said for themselves, if true, as the state is entitled to the benefit of what they said against themselves in any conversation of defendants proved by the state. What they .said against themselves the law presumes to be true because against themselves ; but what they said for themselves you are not bound to believe because said in a .conversation proved by the state. You may believe it ■or disbelieve it, as it may be shown to be true or false by all the evidence in the case.”
It is objected to the first of the above instructions, that it permitted a conviction for murder in the second degree, if the jury, believing them guilty of murder, had ,a doubt as to the degree of murder of which they were .guilty. If the evidence satisfied the jury, beyond a reasonable doubt, that defendants intentionally and maliciously killed Rea, and the only. doubt they had was, whether it was done with the deliberation necessary to constitute the homicide murder in the first degree, .but having none whatever that it was committed with the premeditation, which made the crime murder in the second degree, it was their duty, as the court instructed, to find them guilty of the latter crime. Can it be that it was the duty- of the jury, so believing from the evidence, to acquit the defendants ? Certainly not.
Nor do we see any objection to the second instruc
The following instructions asked by defendants-were refused:
“1. If, after considering all the evidence in the case, the jury shall entertain a reasonable doubt as to-whether defendant Anderson, in killing John Rea, acted maliciously or in self-defence, then the jury can not convict him.”
“2. The court instructs the jury that if John Rea went to the house of defendant Baugh, and brought on a difficulty with the defendant, and in following up such difficulty was shot and killed by defendant Anderson, then the defendant Anderson, in killing said Rea, is not guilty of murder in either degree.”
“ 3. The jury are instructed that Anderson had the right to go to the cabin of Laurel Baugh along with him and to stay all night with him ; and that if Anderson had lain down on the bed, and Baugh had closed the door, the deceased came to the cabin and asked ad*318 mittance, and the door was opened by Baugh, and the ■deceased made an assault on Baugh with á knife and cut and wounded him, and then and there Baugh attempted to defend himself with a pistol, but failed in his defence and was obliged to retreat or fly from deceased, and ran from the door of the cabin, and immediately or within a very short time thereafter, the deceased rushed again towards the door and assaulted-Anderson with a knife and a pistol, or either of them— ■then Anderson had the right to defend himself the same ■as if he were in his own house, and if, in repelling said .assault, Anderson, in the necessary defence of his per-.-sou, with a shot-gun, shot at and killed the deceased, then Anderson was justifiable in his act of shooting, .and neither of defendants is guilty, and the jury must .so find in their verdict.”
The first was properly refused, because the jury had ..been sufficiently instructed with respect to a reasonable ■doubt. The second might properly have been refused, because too vague and indefinite. It does not follow from the fact that one brings on a difficulty, and follows it up, that the other may kill him. He may bring on the difficulty and follow it up in a manner that will not justify the other in killing him.
The court erred in refusing to give the third instruction.- There was ample evidence upon which, to base it, .and it makes no difference that the only evidence tending to prove that Anderson and Baugh acted in self-defence was the testimony of themselves. However the jury may treat the testimony of one on trial for a crime, the court, in its instructions, must treat it precisely as if it was the testimony of a disinterested person. The-original transcript in this cause contains instructions given for defendants on the theory of self-defence, as favorable to defendants as they had a right to ask, but the transcript filed here, as a return to a writ of certiorari, does not show that any instructions were given for
There was no error in not giving to the jury an instruction in relation to manslaughter. There was no evidence upon which such an instruction could be based. If the testimony of the accused is true, they acted in self-defence, and should have been acquitted. It was a case of self-defence, or murder in one or the other degrees; but, for the errors above indicated, the judg
Concurrence Opinion
— I do not concur in reversing the judgment in this case for the following reasons: The original record before this court contained instructions given by the circuit court on behalf of the defendants, placing the law of self-defence before the jury in as strong, 'if not a stronger light, than those copied in the opinion of the court as refused. A motion, accompanied by affidavit, was made, suggesting a diminution of this record, in which it is stated “that the bill of exceptions, as signed by the judge of the circuit court, calls for the instructions given on behalf of the state, and those asked by defendants and refused by the court, marked A, B. C, D, and none others; that the transcript filed herein contains quite a number of instructions which purport to have been given on behalf of defendants, but which said last named instructions affiant states are not called for in said bill of exceptions, and were copied by the clerk of said Carroll circuit court through the oversight of said clerk, or on his own motion.” This motion was sustained and a certiorari awarded, in obedience to which the clerk of said court returned a transcript only containing the instructions given on behalf of the state, and those which were asked by the defendants and refused by the court. This transcript does not show that any instructions were given on behalf of the defendants,, nor does it negative the fact that none such were given, nor is it anywhere affirmed in the transcript that’ the instructions copied were all the instructions given in the case.
While I concede that the transcript last returned supersedes the original transcript, still with the fact before me, which the motion made for a certiorari virtually admits, that instructions were given on behalf of the defendants, I have a right to look at this fact and
Dissenting Opinion
— I dissent from the opinion of the court in this case for the following reasons : As I understand the opinion, the reversal of the judgment of the circuit court is placed upon the ground of the refusal of the court to give what the opinion designates as the third in struction asked by the defendants, upon the doctrine of self-defence. If the record now before us shows, as I think it does, that other instructions were given by the court substantially embracing the theory of self-defence, and the facts upon which it is based, which fairly sub
The seventh instruction given for the state, and found in this record, under numerous decisions of this court, practically presents that question, and is as follows :
“The jury are instructed that the right of self-defence does not imply the right of attack ; a party who seeks or brings on a difficulty, or who voluntarily, of his own free will and inclination, enters into a difficulty, cannot avail himself of the right of self-defence, however imminent the danger, or great the peril in which he may find himself in the progress of the difficulty, and if the jury believe from the evidence, beyond a reasonable doubt, that the defendants, or either of them, provoked, sought, or brought on, or voluntarily and of their own free will entered into a difficulty which terminated in the death of John Rea, then you cannot acquit said defendant or defendants upon the ground of self-defence.”
Instructions substantially like this have repeatedly been approved by this court, and held to “'give the accused the full benefit of all he could claim in regard to the rights of self-defence.” State v. Underwood, 57 Mo. 50. To the same effect, also, are the following cases: State v. Starr, 38 Mo. 270 ; State v. Linney, 52 Mo. 40; State v. Shoultz, .25 Mo. 153; State v. Christian et al., 60 Mo. 138, 145; State v. Brown, 63 Mo. 443; State v. Hudson, 59 Mo. 135, 138; State v. Vansant, 80 Mo. 69, 79.
The only real difference between the seventh instruction given for the state and what is here called the third instruction, asked and refused for the defendants, is that the latter submits the doctrine of self-defence, and the facts upon which it rests, in an affirmative form, while the former practically and substantially submits the same doctrine and facts in a negative form. Otherwise, there
The opinion at one point says that “the transcript filed here, as return to a writ of certiorari, does not show that any instructions were given for the defendants;” and, at another point, it says that “there is nothing in this transcript which allows a presumption that any instructions asked by defendants were given.” This, I respectfully suggest, is hardly an accurate statement of what, upon a careful examination, appears upon the amended transcript itself, now before us. I fully concur in the statement made in the opinion of the court, to the effect that, “what is done in the progress of a trial can only be known and preserved by a bill of exceptions,” and giving full effect to that doctrine, it shows, in my opinion, that this judgment ought not to be reversed. The motion for a new trial, made by the defendants and copied in the amended as well as the original transcript, and which is conceded to be as much a part of the bill of exceptions and record in this case as any other portion thereof, shows clearly, I think, that at least one instruction, if not more, was given for the defendants, and under repeated rulings of this court, it has been held that if the party fails to preserve the same in the bill of exceptions, the court, in its absence, will presume that it correctly stated the law, and in such cases the court will not reverse the judgment.
The sixth cause assigned in defendants’ motion fora new trial is as follows: £ £ The court erred in refusing defendants’ eleventh, twelfth, thirteenth, fourteenth and
The defendants’ motion in arrest, also copied in this record, at least, impliedly shows that, instructions were given- for defendants. The fifth subdivision of that motion is as follows: “(5) Because the verdict is, and the sentence and judgment on defendants would be against the law.” The instructions for the state, manifestly, I think, are not the instructions here alluded to. It is probable, if not certain, that allusion is here made to instructions for defendant, which seem to be absent from this bill of exceptions.
In addition to all that, this bill of exceptions, in the amended record, which alone, it is conceded, must show what was done at the trial of this cause, fails to show
It may be conceded that the bill of exceptions, in the transcript now before us, sufficiently identifies the instructions lettered as A, B, C, and D, as those called for in the bill, and it may also be conceded that the defendants, at the time of their refusal by the court, duly excepted to its action in so doing,- and it may further be conceded that the defendants filed their motion for a new trial as set out in this bill of exceptions, and duly excepted to the action of the court in overruling the same; but still, it is insisted that the bill of exceptions fails to show that said instructions, so lettered, or either of them, was embraced in said motion for a new trial, or is the same as either of them. This the bill of exceptions alone must show, and this it fails to do. Matlock v. Williams, 59 Mo. 105; Campbell v. Allen, 61 Mo. 582. It may be, as has been held by this court, that in criminal cases it is the duty of the trial court to give all
The rule in this court, as repeatedly anuounced, is-to the effect that a party will not be heard to complain of error in the giving or refusing of instructions, unless the attention of the trial court is called to the instruction in question in the motion for new trial, and this, the parties in this instance, as I understand the' record, have failed to do. State v. Emery, 79 Mo. 461; Birney v. Sharp, 78 Mo. 73; Anthony v. St. L., I. M. & S. Ry. Co., 76 Mo. 18; Matlock v. Williams, 59 Mo. 105; 61 Mo. 582. Indeed, the real question in the case at bar, as I understand the record, is not whether the trial court failed to give any instructions for the defendants, but whether, having given, in a modified form, defendants’ seventh instruction, as the record clearly shows, it was-not the duty of defendants to preserve that instruction