278 Mo. 441 | Mo. | 1919
The appellant on a trial in the Circuit Court of Pemiscot County was convicted of murder in the second degree, and appealed. One A. P. Bumpas was the victim of the homicide. The trouble between the two men arose out of the defendant’s alleged attentions to the wife of Bumpas.
Mrs. Bumpas had charge of the post office at the town of Cooter in Pemiscot County. The defendant, Burns, was a mail carrier, and his route lay through Cooter, where the homicide occurred September 27, 1917. He carried the mail in his automobile. The two families of Bumpas and Burns were on friendly terms; and both men and their wives and children were at times-taken for a ride in Burn’s car. Previous to the time of the homicide the deceased had complained about Burn’s attention to his wife, although he always said that nothing improper had occurred between them.
Burns was scheduled to leave Cooter at 3:10 each afternoon, and he usually arrived at that' post office
On September 27th Burns arrived as usual with the mail. Bumpas was at the time in the back yard, working on some kind of a building. Mrs. Bumpas was in the post office preparing the mail bags for delivery to Burns; two small daughters of Bumpas, Mary Lou, ten years of age, and Helen, seven years of age, were at the time in the house, in the rooms in the rear of the post office. No other persons were in or immediately near the post office. Several other witnesses testified to seeing some of the incidents of the tragedy from other points of view up and down the street in front. The-two little girls testified for the defendant that their father came in from the back yard, went to his trunk in his bed room and took a pistol from it, and walked with- it into the post office where Mrs. Bumpas and Burns wer¿. Bumpas then ordered Burns to get out, and thereafter to put the mail on the porch and not come into the office. Mrs. Bumpas did not testify, and nothing further is shown of what occurred in the post office. The next that appears in the testimony was when Burns came out of the post office to where his
Next Burns was seen dodging around his car with his revolver in his hand. He stated that he got it out of the car after he went out. Immediately a shot was fired from a weapon of small calibre. Burn’s revolver was a 32 automatic. At that time Bumpas was not in sight of the witnesses in front of the post office, and Burns swore that the first shot was accidental; that he picked up his automatic with his left hand and that it was discharged by accident. Almost immediately a shot from a weapon of larger calibre was heard. -It was afterwards shown that Bumpas had a revolver of larger size in his hands and an empty cartridge was found in one of its chambers. • Immediately in rapid succession Burns fired twice, and one of the shots struck Bumpas in the side above the hip, and he sank to the floor. According to some of the testimony he was still trying to get a shot at Burns when witnesses appeared on the scene to pick him up. These witnesses asked the defendant not to leave right away, and he told them to take the gun away from Bumpas and he would not leave. Burns cranked his car immediately and went away. When the witnesses arrived they found Bumpas on the floor. Mrs. Bumpas refused to allow him to be put on the bed. It was shown over the objec
Bumpas was taken to Memphis, where he was operated on and died in a day or two.
“Second: The court further instructs you that if you find from the evidence that the defendant Ernest Burns intentionally killed the deceased by shooting him with a loaded pistol in the manner set forth in the*447 foregoing instructions, and that such pistol was a deadly weapon, then the law presumes that such killing was murder in the second degree, in the absence of proof to the contrary, and it devolves upon the defendant to meet or repel that presumption, unless such presumption is met or repelled by the evidence introduced on behalf of the State.”
This instruction regarding presumption of guilt in trial for murder in the second degree is never “permissible when the evidence shows what the facts are as it did in this case. “Presumptions are invoked only when evidence is lacking.” [State v. Swearengin, 269 Mo. l. c. 186; State v. Willard, 192 S. W. 439; State v. Frame, 204 S. W. l. c. 10; State v. Solan, 207 S. W. l. c. 783.] It was error therefore to give that instruction in that form.
III. The court in an instruction defining self-defense concludes with this qualification:
That instruction is erroneous, because it takes away entirely the right of self-defense. It asserts that if the defendant voluntarily “engaged in” the difficulty the right of self-defense is not available to him, no matter at what point or under what circumstances his voluntary action commenced. This instruction is quoted
There are several inferences that may be drawn from the evidence. The one most unfavorable to the defendant was that, incensed by the language of the deceased, he drew his revolver "and commenced firing before Bumpas went into the house to secure a weapon and in the subsequent exchange of shots he killed Bum-pas. Another is that Bumpas drove him out of the house with curses and threats and with a drawn weapon which, however, he did not use until after the defendant had fired the first shot. Another version, still more favorable to the defendant, the one supported by his testimony and some other circumstances, was that Bumpas drove him out of the house with a drawn weapon and with curses and with such threatening demeanor as to cause a reasonable belief that he was going to shoot; that defendant in his excitement, in picking up his automatic discharged it accidentally, and thereupon Bumpas fired, either in pursuance of original intention or because of the discharge of defendant’s'weapon. The defendant thereafter fired for the purpose of
There are no ■ circumstances showing a provocation which would reduce the homicide to manslaughter in the fourth degree short of the evidence which would justify it altogether. If Bumpas did drive him out of the house with opprobious words and threats the provocation was not sufficient. [State v. Sharp, 233 Mo. l. c. 290; State v. Barrett, 240 Mo. l. c. 169; State v. Vest, 254 Mo. l. c. 465-6.] There was no evidence to show that the defendant was aroused to any frenzy of passion which would obscure for the moment his reason. There was no assault upon the defendant nor attempted assault upon him except with a weapon which would have produced death and justified Mlling in self-defense. Defendant was either guilty of murder or he was. not guilty at all. The only evidence of excitement on his part was his own statement that the deceased came out with his gun, threatening to Mil him if he didn’t go away, and defendant’s hat almost fell off because in his fright his hair raised it from his head. In that case, if that were true, and the appearance was sufficiently reasonable to warrant the belief that Bumpas was about to Mil him, his self-defense was perfect and' an instruction on manslaughter unnecessary. There is no .room 'for a qualified self-defense which would reduce the offense to manslaughter as defined in State v. Eastham, 240 Mo. l. c. 252. If defendant brought on the difficulty it was with a felonious intent, for his first hostile act was to fire-a deadly weapon at Bumpas.
The Attorney-General confesses error in the case, and for the errors noted above the judgment must be reversed. There is, however, sufficient evidence to warrant a submission of the cause to the jury and for that
The foregoing opinion by Whits, C., is adopted as the opinion of the court.