271 Mo. 73 | Mo. | 1917
The appellant was found guilty of manslaughter in the fourth degree in the circuit court of Dunklin County,- at the October Term, 1915. He was charged with killing one Robert M. Baskin. The affair took place at a logging , camp of the Wisconsin Lumber Company, located on a spur track near a station known as Converse, on the Deering-Southwestern Railroad. The defendant was woods foreman of the lumber company, having general charge of the camp and of the men employed there.. Baskin, the deceased, was one of the men employed and his duty was to scale logs. Baskin was a young man whose age was variously placed at from twenty to twenty-three years by the witnesses. Goodwin
The defendant had an office, combined with a sleeping apartment, in what is termed his “car,” a building constructed in the shape of a box car, made so that it could be loaded upon a flat car and moved from place to place. In the camp it was set upon blocks about three or four feet high. This car was eight or’nine feet wide and eighteen or twenty feet long. Goodwin had his office in one end of the car and his bed in the other end, there being a partition between the two parts. A porch extended along the end occupied as his office, and a door and two windows opened upon this porch, as also a door and two windows opened at the other end of this car. The car sat along-side the spur track and about eighteen or' twenty feet from it. Forty or fifty yards away, and on the other side of the track, was what was called the “boarding house.” It consisted of two or three cars similar to Goodwin’s car, set together in such a way as to be convenient for its purpose. On that same side of the spur track, and a little distance away, was Baskin’s car, where he kept a desk and also a bed where he slept.
The difficulty leading to the homicide took place in the forenoon of June 15, 1914, in the front part of Goodwin’s car, where he had his desk. On that morning a young woman by the name of Yena Biggs, who formerly had been employed at the boarding house-, was visiting the camp and went to Baskin’s car, where she was sitting on the side of his desk engaged in a conversation with him when observed by Goodwin. There was some indication in the testimony that the character of this Vena Biggs had been questioned, and Goodwin, as he claimed, in the discharge of his duties as foreman of the camp, directed or requested Mrs.'Kennedy, who conducted the boarding house, to call Yena Biggs away from Baskin’s car. She did so. The girl came immediately to the-boarding house, followed by Baskin, who inquired whether Goodwin had directed Mrs. Kennedy to call her. Upon receiving an affirmative answer, without comment of any kind, he went toward Goodwin’s car.
It might be said that most of these three or four women failed to see the fight entirely through from beginning to end. One of them fainted; another was afraid there was going to be trouble and rushed, or was pushed, into her room; another went for her husband, and there appears to have been intervals when none of them were looking. After a time both men again appeared on the porch and Baskin had a pump handle in his hand. The
I. Two instructions given on the court’s own motion, submitting a theory of self-defense, were objected to. One of them, number 9, contains this language:
“If at the time defendant, A. W. Goodwin, struck and killed Robert M. Baskin, ... he reasonable cause to believe and did believe that it was necessary for him to strike and kill, to protect himself from such apprehended danger, you will acquit the, defendant on the ground of self-defense.
The other instruction, number 10, emphasizes the theory of the trial court in this way :
“On the question of self-defense the court instructs the jury that self-defense is-a defense of necessity and before it can avail the defendant, you must find and believe from the testimony that the defendant not only thought he was in danger of being killed but that he had reasons to believe that he was in danger of being killed or receiving great bodily harm and that such danger existed at the moment that he struck the fatal blow,” etc.
Both instructions provide that self-defense could not avail defendant unless such facts were found. These two instructions taken together made it necessary for the jury to find, before they could acquit the defendant: First, that he believed himself in danger of being killed, and struck Baskin in order to save his own life; and, second, that he had cause to believe and did believe it necessary to kill Baskin in order to protect himself. If
The State cites as a justification for instruction number 9 the case of State v. Gee, 85 Mo. l. c. 650, where a'n instruction in the same language was approved. But in that case the defendant used a revolver and shot to kill the decedent, with whose murder he.was charged. The instruction provided that before he could avail himself of self-defense he must have had cause to believe and must have believed that it was necessary to shoot and hill his assailant in order to protect himself from danger. It has been approved in later cases, but always where a deadly weapon was used. However, in still later cases, that form has been criticized by this court under circumstances similar to those in the G-ee case. [State v. Lewis, 248 Mo. l. c. 508; State v. Swearengin, 269 Mo. 177.] In each of these cases this court criticized this instruction, even when the defendant used a revolver and shot to kill, as failing to give him the benefit of some purpose he might have entertained of disabling his antagonist without killing him.
II. Error, is assigned to the failure of the trial court to properly rebuke the attorney employed to assist in the prosecution for his persistence in cross-examining the defendant in regard to matters not testified to in his examination in chief.
The attorney for the State had brought out, on cross-examination of defendant, that Mr. Pingle, the superintendent, had spokeii of discharging Baskin because his work was not satisfactory. The attorney then, in order to impugn the good faith of the defendant, asked him if it was not a fact that he did not have a word to say about the work of Baskin when he was alive, but selected the time when he was dead and could not answer his charges. This question was entirely outside the scope of the-direct examination. The objection to it was sustained, but the
The only pertinency of the evidence relating to the calling of Vena Biggs from Baskin’s car was to explain why Baskin went to Goodwin’s car. The State saw fit to bring it out. The only relevant purpose it could serve would be .to show Goodwin invited or expected trouble, but nothing of that kind was suggested. Defendant’s testimony in chief referred only to the duty assigned him by his superior, which he was attempting to discharge when he caused the girl to be called away. His own moral de
Errors are complained of in giving instructions on the court’s own motion on murder in the second degree, but inasmuch as the defendant was convicted of a lower offense, manslaughter, the alleged error was not harmful and will not be reviewed. [State v. Wilson, 250 Mo. l. c. 329.]
Since a new trial will be ordered, it is unnecessary to review the assignment of error in refusing the defendant’s application for a continuance.
The judgment is reversed and the cause remanded.
The foregoing opinion of White, C., is adopted as the opinion of the court.