191 Mo. 114 | Mo. | 1905
On the 18th day of October, 1902, the grand jury of Boone county, Missouri, at the October term of the circuit court, returned an indictment against the defendant, charging him with murder in the first degree of Hugo G. Doelling on the 8th day of July, 1902. The defendant was duly arraigned upon said indictment and entered his plea of not guilty thereto. At the February term, 1904, the defendant was put upon his trial before a jury, and was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the State penitentiary for a term of two years. Motions for new trial and in arrest of judgment were filed in due time, heard and overruled and exceptions saved, and from the judgment and sentence, the defendant appealed to this court.
The evidence on behalf of the State tended to prove the following facts:
On the 8th day of July, 1902, Hugo G. Doelling was the proprietor of and conducted a restaurant in the city of Columbia, Boone county, Missouri. He was living with his wife and child in rooms immediately above the restaurant, and had lived in the city about one year. The defendant was an attorney at law,. residing and
The court instructed the jury on murder in the first degree and second degree and manslaughter in the fourth degree. For the State the court gave instruction number ten in the following words:
“If the jury believe and find from the evidence that the defendant had an altercation with Hugo G. Doelling, which resulted in the death of said Doelling, and that the defendant commenced such difficulty or voluntarily entered into the same with the felonious intent to take advantage of the quarrel thus begun and to kill said Doelling or to do him some great bodily harm, then there is no self-defense in this case, and the jury will not acquit the defendant on that ground. And this is true, no matter how violent defendant’s passion became, or hard he was pressed, or how imminent his peril may have become during said difficulty. You are
The court also modified instructions numbered one and two asked by the defendant by insertion of the words “if necessary,” so as to make said instructions read as follows:
“1. If the jury believe from the evidence that at the time of the killing of the deceased Doelling, as charged in the indictment, the defendant Gordon went to the business house of said Doelling, in Columbia, to collect a claim theretofore placed in his hands as an attorney, for collection, and that then and there an angry controversy suddenly arose between said parties, followed by blows inflicted with his, Doelling’s, fists on the head, face or body of said Gordon, and that said Doelling was a large, athletic and powerful man, and that Gordon was a physically small man, under the average of strength and power, and that he had then and there entertained a design to do him (Gordon) some great personal injury, with his fists, by reason of his (Doelling ’s) superior physical strength, and that there was then and there imminent danger of the accomplishment of such design, then the defendant Gordon was justified under the law in cutting or stabbing deceased and even
“2. If the defendant had any reasonable cause to believe from the words, acts and conduct of the deceased that he had a design to do him some great personal injury, and that such design was about to be accomplished, then defendant had a right to act on appearances and to cut or stab deceased (if necessary) to prevent the accomplishment of such design, and in this connection the jury are further instructed that defendant was not required to nicely gauge the force used, but that he could use any means that appeared reasonably necessary under the circumstances. Neither is it necessary to this defense that his danger should have been real or actual, or that it should have been impending and about to fall, but if he had reasonable cause to believe, and did believe these facts, and cut the deceased to prevent such expected harm, then you must acquit on the ground of self-defense.”
The other instructions will be noted as far as necessary in the discussion of the case, together with the objections of the defendant to them.
I. One. of the principal contentions in this case, and one which requires consideration, is that the court erred in giving the tenth instruction on behalf of the: State. This instruction is set forth in full in the statement which accompanies this opinion. No criticism is made on the first clause of this instruction, which told the jury that if the defendant brought on the difficulty with a felonious intent to kill the deceased, or to do him some great bodily harm, then thé defendant could not be justified on the ground of self-defense, as a legal proposition, where the evidence warrants such an instruction, but it is earnestly insisted that the latter portion of the instruction in effect advised the jury that although the. defendant voluntarily entered into the dif
“It may be divided into two general classes, to-wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong — if he was himself violating or in the act of violating the law — and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self-defense. "Whenever a party by his own wrongful act produces a condition of things wherein it becomes necessary for his own safety that he should take life or do serious bodily harm, then indeed the law wisely imputes to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of offense which but for such acts would never have been occasioned. . . . How far and to what ex
Bishop in the 2nd volume of Criminal Law (8 Ed.), section 701, states the rule in these words: “A common case is where two persons, upon a sudden quarrel, engage in mutual combat; then if either one, in the heat of it, kills the other, though with a deadly weapon, the offence is in most circumstances only manslaughter. When the combat has become mutual, it ordinarily ceases to be of importance by which party the first blow was given. And, as we have seen, it makes no difference though the blow which proved fatal was, while prompted by the heat of the fight, inflicted with the intent to take life." Thus it will be observed that in Part-low’s case this court held that the right of perfect or imperfect self-defense depended upon the intent with which the assailant brought on the quarrel.
If he provoked the combat, or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder in the first degree, no matter to what extremity he may have been reduced in the combat. If, on the other
At common law words of reproach, how grievous soever, were not provocation sufficient to free the party killing from the guilt of murder, nor were contemptuous or insulting actions or gestures without an assault upon the person, nor was any trespassing against lands or goods to have the effect to reduce the guilt of killing to a grade of manslaughter; the provocation must consist of personal violence. [1 East’s Pleas of the Crown, 233; 4 Blackstone, Com., 201; State v. Wieners, 66 Mo. 13.] And the common-law rule in this respect is firmly established in this State by a long line of decisions. [State v. Starr, 38 Mo. 271; State v. Branstetter, 65 Mo. 149; State v. Hill, 69 Mo. 451; State v. Elliott, 98 Mo. 150; State v. Gartrell, 171 Mo. 516-519.]
Recurring now to the latter -clause of instruction number ten given by the court, and measuring it by the foregoing established principles of criminal law in this State, and in the light of the testimony, was it a correct guide to the jury, or is it open to the objection urged by the defendant on this appeal? It is to be observed in the first place that it predicates the guilt of the defendant of manslaughter in the fourth degree upon one of two alternatives, either that the defendant brought on, or voluntarily entered into the said difficulty and stabbed and, killed Doelling, and in either case deprived him of the right of self-defense. It does not tell the jury that if the defendant brought on the difficulty by any wrongful or unlawful act of his with a design to commit a battery or an assault without any felon
It has been ruled in various cases by this court that self-defense is an affirmative, intentional act, and in that sense is voluntary, and while, perhaps, it was too strongly put in State v. Rapp, 142 Mo. l. c. 448, to say that, “Voluntarily entering into a difficulty is not an ingredient of any homicidal crime,” as was said in that case, still we think it is clear that when one is assaulted by another and he neither brought on nor voluntarily entered into such a difficulty with a view to take advantage of a quarrel begun between him and his opponent, he does not forfeit his right of self-defense by voluntarily resisting the assault made upon him, and if the circumstances are such that when thus assaulted he has reasonable cause to believe and does believe that his opponent then and there entertains a design to kill him or do him some great bodily harm, and there is imminent danger of the accomplishment of such design, then he may resist the accomplishment of such a purpose by killing his adversary to prevent the accomplishment of such a purpose. In the instruction we are considering, the court told the jury that although they might “findfromthe evidence that the defendant did not bring on or enter into said difficulty with a view to take advantage of the quarrel thus begun and to slay Doelling or to do him some great bodily harm, the defendant could not be justified on the ground of self-defense,
That we may not be misunderstood, we hold there is a radical and well-defined distinction between the right of one who brings on or provokes a difficulty with another with the felonious purpose of wreaking his vengeance by killing him, to avail himself of the right of self-defense even though in the attempt to perpetrate his crime he finds himself in imminent peril, and the right of one who neither seeks nor brings on a difficulty, but who finding himself assaulted exercises his right of self-defense. Likewise, we think it is equally clear that if one wrongfully commences a difficulty by assaulting another and only intends to commit a misdemeanor or ordinary battery, and in the course of the combat finds it necessary, in order to save his own life, to slay his adversary, he still has the imperfect right of self-defense, and a homicide committed by one under such circumstances, even though he was at fault in the beginning, is only manslaughter, because he had no felonious purpose in bringing on or provoking the difficulty, and yet such a case is different from that which is disclosed in the record before us. Doelling, the deceased, in his dying declaration, and the defendant, the only two witnesses who speak of the commencement of the combat in which defendant stabbed Doelling, both agree in saying that the deceased assaulted the defendant by striking him a blow with his fist on the side of the temple. Deceased says he did this because defendant applied a foul epithet to him, and the defendant drew his knife after he was struck by deceased and stabbed deceased. On the other hand, defendant testified he did not use the foul language attributed to him, but said to deceased
In Boatwright v. State, 89 Ga. 140, it appeared that the deceased, under provocation of opprobrious words, attacked the defendant with a stick, and it was held that “where a battery with a weapon likely to produce death was being committed by the deceased upon the slayer when the mortal blow was given, the fact that he provoked the battery by the use of opprobrious words would not put the slayer in the wrong for resisting it so far as was necessary to his defense; and a seeming necessity, if acted upon in good faith, would be equivalent to a real necessity."
In Butler v. State, 92 Ga. 601, it was ruled that if the assault upon the accused was made with a weapon likely to produce death and in a manner apparently dangerous to life, the fact that the accused provoked the assault by opprobrious words would not put him in the wrong for resisting it so far as necessary to his defense. And this mnst be true in this State. Either the law is that mere words of reproach or opprobrious epithets are not a sufficient provocation to justify an assault upon the person using them, or they are. If they are not, as this court has always declared, then the de
II. The criticism of instructions 3 and 6, on the ground that they assume that the knife with which defendant stabbed deceased was a deadly weapon, is without merit. Both instructions submit the question as one of fact to the jury. [State v. Weeden, 133 Mo. 83.]
III. As to the alleged failure to submit to the jury whether the dying declaration was in fact made, we think there was no just ground of complaint. Defendant asked and obtained an instruction (No. 12) which assumed a dying declaration had been made and was exceedingly favorable to defendant. Besides, such omission can readily be supplied on another trial.
IV. The instruction on reasonable doubt was substantially correct, but we again approve the formula expressed on this subject in State v. Nueslein, 25 Mo. 111.
V. The defendant prayed the court to declare the law to be as follows:
“1. If the jury believe from the evidence that at the time of the killing of the deceased Doelling, as charged in the indictment, the defendant Gordon went to the business house of said Doelling, in Columbia, to collect a claim theretofore placed in his hands as an attorney, for collection, and that then and there an angry controversy suddenly arose between said parties, followedby blows inflicted with his, Doelling’s, fists, on the head, face or body of said Gordon, and that said Doelling was a large, athletic and powerful man, and that Gordon was physically a small man, under the average of strength and power, and that he had reasonable cause to believe that deceased then and there entertained a design to do him (Gordon) some great per
“2. If the defendant had reasonable cause to believe from the words, acts and conduct of the deceased that he had a design to do him some great personal injury, and that such design was about to be accomplished, then defendant had a right to act on appearances, and to cut or stab deceased to prevent the accomplishment of such design, and-in this connection the jury are further instructed that defendant was not required to nicely gauge the force used, but that he could use any means that appeared reasonably necessary under the circumstances. Neither is it necessary to this defense that his danger should have been real or actual or that it should have been impending and about to fall, but if he had reasonable cause to believe, and did believe these facts, and cut the defendant to prevent such expected harm, then you must acquit on the ground of self-defense.”
The circuit court modified these two instructions by adding the words "if necessary." In the first, those words were inserted in the third line from its conclusion after the words, “And even to kill him, deceased, if necessary.”
In the second of said instructions, the words “if necessary” were inserted after the words in the fifth line, “then defendant had a right to act on appearances and to cut or stab deceased, if necessary." The words “if necessary” add-nothing to the clearness of the legal propositions asserted in these instructions. The instructions were correct without them,and while the
VI. As a reversal of the judgment results from the errors already noted, it is unnecessary to consider whether the court erred in refusing a new trial on the ground of the incompetency of two jurors, further than to say it was a question of fact which the circuit court determined, and it would require an exceptionally flagrant abuse of discretion to justify our interference on such a ground. For the reasons assigned the judgment must be reversed and the cause remanded for a new trial in accordance with the views herein expressed and it is accordingly so ordered.