170 Mo. 658 | Mo. | 1902
Prosecuted on information filed in the Scotland Circuit Court for the murder of William D. Edwards, on. change of venue to Lewis county, defendant was found guilty of manslaughter in the fourth degree and his punishment assessed at two years in the penitentiary.
The amended information filed in Lewis county, by the prosecuting attorney of Scotland county, charged the crime to have been done by shooting Edwards to death with a revolver.
The testimony in the bill of exceptions in this cause, covers nearly seven hundred type-written pages. Of course there is no manner of necessity for covering such an immense acreage of space as this transcript covers. The whole meat of this case can, by proper condensation, find ample room in a transcript of one hundred pages or less. The controlling facts in this case are few and simple; but the controlling facts were not allowed to control in this instance as will presently be seen.
E. Russell Bartlett, the defendant, is something past middle age, almost blind by reason of near-sightedness and chronic weakness. of the eyes; very frequently afflicted with rheumatism, and so very badly ruptured that often he would be in a dangerous condition for hours together, and would have to have immediate medical attention and relief. His eyesight was so short in its range that the paper he would read, he would have to hold within three or four inches of his eyes, and friends and relatives' whom he would meet in the street or at home, he could not recognize only at a short distance, three or four feet, and but little further, and then only when the light was back of the person seeking recognition. But he could recognize persons by their voices, and by addressing him as they met or passed him on the street, was the usual and customary way his friends and acquaintances had of apprising him of their presence and identity.
It crops out in several places in this record that defendant had enemies, who it appears were some of those,
Defendant, at the meeting in the Reveille office, had admitted to William D. Edwards that his brother was at Wichita and not in the penitentiary, but refused to sign the retraction tendered him, because, as he said at the time, this was not a fair statement. What were the contents of that paper, is like locating the grave of Moses.
Defendant, also, after going to Wichita, where he saw John A. Edwards, said sometime in December or January, after his return, that John A. Edwards was not the man. ' Some persons it seems, who knew John A. Edwards when he formerly lived in Scotland county, had told defendant that a photograph of Brown or
To several other persons, defendant made similar •statements, and requested them to tell his friends of what he had acknowledged.
On or about 1:30, in the afternoon of March 8th, defendant who had been suffering for two months with severe hemorrhage of the bowels, and was almost in a .state of nervous prostration, at the request of his wife, because it was raining a little and he had recently suffered from rheumatism, took his daughter’s umbrella, which she brought him (as she and,a companion wished to use his), and started down town, accompanied by his nephew, “Glaze.” This .umbrella which defendant carried in his hand, had a half crooked handle, such as nmbrellas usually have, and could readily be taken for .a cane, were only the. handle seen.
On arriving down town, as defendant and his nephew were approaching his office, or at least in the near vicinity of it, William D. Edwards, accompanied by his faithful lieutenant, Bob Board, Edwards with a raw Mde whip covered with cloth, loaded with iron at the butt and weighing half a pound and which, with lash, measured five feet, came up behind defendant, when Edwards, without a word to defendant, began striking ■defendant over the shoulders and on the back of the head, with the lash of the whip with such force that the swish of the blows of the whip, according to one of the State’s own witnesses, was so loud as to be heard by Mm clear across the square, a distance of some five hundred feet. At the same moment, Board, who pretends he did not Icnow Edwards “had a whip at the time,” immediately sprang forward and caught defendant’s
Edwards still kept np his blows, apparently not having been hurt. When defendant again told him to stop, and the blows still continuing, defendant, after a few clumsy and nervous endeavors to fire the pistol, having caught the guard instead of the trigger, finally managed, by using his left hand, to reach the trigger— when the pistol fired and Edwards sank down on the steps, and being removed, died the next day.
That defendant apparently attempted to open his office door is abundantly sustained by the State’s and other witnesses; their testimony is to the effect that he turned his face towards the door, seemed to be grabbing the door knob, and partly disappeared, but the evidence shows the door jams are some nine inches thick and so defendant could partly disappear and still not open the door, and so his testimony on the subject stands uncon-tradicted, indeed supported, on this point. And it is also in evidence that the lock of the door in question was not infrequently “out of hilter” and would not work as it should; so that the door often seemed locked when it was not. Defendant having fired the last shot turned to his office door, took hold of the knob and the door opened. He testified that his impression was, at the time, that some one inside unlocked the door, but that, at any rate, the door opened when he took hold of the knob.
Defendant’s umbrella was found on the stairway, but no cane was found on the premises. While Edwards was plying his whip to defendant, at the head of the stairs, and just before the first shot was fired, Mr. Lawrence testified to hearing some one in the crowd call out: “Hit him, he dassent shoot!”
Defendant freely admitted that at each time he fired, he fired to kill. That he had heard of the threats that were made by Edwards about him; that he thought he saw Edwards make a motion for a gun, and believing he would be killed unless he killed Edwards, he re
Defendant, when first assaulted and beaten by Edwards on the street, was not hound to retreat to his office. He had a right to' he where he was, and the wrong of Edwards in assaulting and heating him there, could not deprive him of that right and so this court has, in effect, decided. [State v. Evans, 124 Mo. 397; see, also, State v. Hudspeth, 150 Mo. loc. cit. 33, and cas. cited.] Because the right to go where one will without let or hindrance, despite of threats made, necessarily implies the right to stay where one will without let or hindrance. These remarks are controlled hy the thought of a lawful right to be in the particular locality to which he goes, or in which he stays.
It is true, human life is sacred, hut so is human liberty; one is as dear in the eye of the law as the other, and neither is to give way and surrender its legal status in order that the other may exclusively exist, supposing for a moment such an anomaly to he possible. In other words, the wrongful and violent act of one man shall' not abolish or even temporarily suspend the lawful and constitutional right of his neighbor. And this idea of the non-necessity of retreating from any locality where one has the right to be, is growing in favor, as all doctrines based upon sound reason inevitably will, and has found voice and expression elsewhere.
Thus, the Supreme Court of Indiana, discussing this subject, said: “A very brief examination of the American authorities makes it evident that the ancient doctrine, as to the duty of a person assailed to retreat as far as he can, before, he is justified in repelling force
In this case, however, defendant had brought himself strictly within the old rule of retreating to the wall, although he had done nothing to cause the assault made on him. Finding the door of his office would not open, he had a right, in the circumstances already related, to turn on his pursuing and persistent adversary and defend himself as best he could. [State v. Partlow, 90 Mo. 608, and many subseq. cas.]
We have carefully read this unusually long and uselessly long record, and considering the circumstances detailed therein; the physical condition of defendant; his badly ruptured state; the poorness of his eyesight and his infirm health; the danger which must have attended a personal struggle with au adversary by far his physical superior; the fierce and deadly threats made against him by Edwards in case he failed to retract; the fact that Edwards suddenly attacked him from behind on the public street, without saying a word or asking a retraction; the fact that his only protector, his nephew, was seized from behind and held by .Bob Board, one of those leagued against him, and prevented from going to his rescue the very moment Edwards
In such peculiar circumstances as this record discloses, and the physically infirm condition of defendant, the grounds of, and reasons for, self-defense, are necessarily and indubitably enlarged.
On the point of self-defense, it is aptly said by WagNEr, J.: “When a person apprehends that some one is about to do him great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, he may safely act upon appearances and even kill the assailant if that be necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterward turn out that the appearances were false, and there was, in fact, neither design to do Mm serious injury nor danger that it would be done. He must decide at his peril upon the force of the circumstances in which he is placed, for that is a matter which will be subject to judicial review. But he will not act at his peril of making that guilt, if appearances prove false which would be innocence had they proved proved true.” [State v. Sloan, 47 Mo. loc. cit. 612.]
But nothing above asserted is intended to convey the idea that one man, because he is the physical inferior of another, from whatever cause such inferiority
On tbis topic of tbe saeredness of a man’s person, an eminent text-writer says witb bis accustomed accuracy and force: ‘ ‘ But any injury whatsoever, be it ever so small, being actually done to tbe person of a man, in an angry or revengeful, or rude or insolent manner, such as spitting in bis face, or in any way touching him in anger, or violently jostling him out of tbe way, is a battery in tbe eye. of tbe law. For tbe law can not draw tbe line between different degrees of violence, and, therefore, totally prohibits tbe first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle witb it in any tbe slightest manner.” [3 Russell on Crimes (Internal Ed.), 1896.] To which may be added, tbat human liberty is an inseparable attendant on the sacredness of a man’s person, and will not last long if tbe latter can be ruthlessly invaded without peril and without punishment, save tbe mere imposition of a nominal fine, or tbe recovery of cure damages.
This case was tried on tbe truly phenomenal theory tbat defendant had been circulating slanders about William D. Edwards’ brother, in order to provoke the latter to attach him. Tbis view is embodied in tbe following instruction given at tbe instance of tbe State:
“16. Although tbe evidence shows tbat tbe deceased first assaulted tbe defendant, still, if you believe tbat defendant witb preconceived malice, and in order to have an excuse or pretext for killing William D. Edwards or for doing him some great bodily barm, intentionally by tbe utterance of false and degrading statements concerning tbe family of tbe deceased, provoked deceased to wrath for tbe purpose of inciting tbe deceased to attack him, and make tbe first assault, then,*672 in such, case the killing of "William D. Edwards would "be murder in the first degree, no matter how severe may have been the attack of William D. Edwards upon him.”
In the first place there was no evidence to warrant such an instruction; in the second place there was no law to warrant such an instruction. Provocation, in such case, must be personal, and even then would not authorize, as does the litigated instruction, the infliction of a horsewhipping. Besides, that instruction abrogates all right of self-defense. All evidence about such slanders should have been rigorously excluded by the trial court when offered by the State, and only admitted on behalf of defendant to show threats made by William D. Edwards, and the basis and conditions of such' threats. And though the objection to such supposed evidence, to-wit, that it was “incompetent, immaterial and irrelevant,” which Judge Ryland, away back in 21st Mo. said was “no objection at all,” and this court, every term of court since, still holds, as the evidence was no evidence at all, when offered by the State, such general “sheet lightning” objection was sufficient: [State v. Meyers, 99 Mo. 107, and subseq. cas.] It was thought necessary to note and notice the above point, lest through inadvertent tolerance,
“ 'Twill be recorded for a precedent;
And many an error, by the same example,
Will rush into the state."
The like considerations induce comment on the “amended” information filed in this .cause"in the circuit court of Lewis county, by the prosecuting attorney of iScotland county. ' ...
By the amendment to our Constitution adopted in 1900, it is provided that: “No person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information, which shall be concurrent remedies.”
Prior to the adoption of this amendment, as is well known, felony could only have been prosecuted by indictment. When this was the constitutional rule and limitation, it was decided by this court in Slater’s case,-
This point was not raised in the motion in arrest, but being a matter of record, and a question of jurisdiction, we have thought best to notice it.
For the foregoing reasons we reverse the judgment and discharge the defendant.