State v. Harrod, 102 Mo. 590

102 Mo. 590 | Mo. | 1890

Gantt, P. J.

— The defendant, Selus Harrod, was jointly indicted, with his two sons, John Harrod and Selus Preston Harrod, at the March term, 1890, of the Gentry county circuit court. A change of venue was awarded them on their joint application to the circuit court of Nodaway county. A severance was granted, and the father, Selus Harrod, was tried at the June term, 1890, in Nodaway county, and convicted of murder in the second degree, and sentenced to ten years’ term in the penitentiary. He appeals to this court.

I. The first error complained of is the admission of evidence by the circuit court of certain statements of the defendant, in the nature of threats against the deceased.

We think the court did not err in receiving this evidence. Wharton’s Crim. Evidence, sec. 756; State v. Talbott, 73 Mo. 347-360.

II. It is also assigned as error that the circuit court refused to permit defendant to prove that deceased, on several occasions and within a few days of the homicide, had made bitter threats against defendant. All of the witnesses to these threats and expressions of ill-will were on the stand, and the offer to prove was definite and specific, as to time and place. In refusing this evidence of threats by the deceased, there was manifest error.

There was evidence that the deceased was the aggressor ; that, on the day before the homicide, he had assaulted the defendant and abused him at the gate leading into the public road, near tile residence of deceased ; that he had a real or imaginary grievance, growing out of the depredations of defendant’s cattle.

On the morning of the difficulty which resulted in the death of Fallís, defendant and his sons were on defendant’s premises, and defendant was attending to his own business, salting his cattle and laying up his fence. That Fallís began anew the quarrel of the previous day, there can be no doubt, on the evidence in the record before us. That Fallís, the deceased, went out of his way to renew this quarrel as the sons drove up with the load of rails, seems equally well settled.

Iiis own son says his father began the quarrel about the settlement, and corroborates the evidence of the other witnesses to the fact that Fallís had an iron chain in his hand; that he struck or pushed John, the son, out of his way, in his effort to reach the defendant and was advancing on defendant, when he was struck by Preston Harrod. Under these circumstances, these threats made so recently before this unfortunate affair became of the utmost importance in characterizing the conduct of Fallís and explaining his intention and purpose in assaulting the defendant and his son. Wharton’s Crim. Ev., sec. 757; State v. Elkins, 63 Mo. 159; State v. Downs, 91 Mo. 19; State v. Bailey, 94 Mo. 311; State v. Sloan, 47 Mo. 604.

III. The defendant complains that the circuit court erred in giving instructions in behalf of the state.

From an examination of instructions numbered 10, 11 and 13, it will be seen, the court assumed there was some evidence that the defendant and his sons sought or provoked the difficulty which resulted in the death of Barnett Fallís. We have read the evidence preserved in this record carefully and we find nothing- in the facts disclosed that can be tortured so as to show the defendant or his sons sought or brought on this difficulty.

Indeed, unless we discard all presumptions of innocence and impute criminal motives to the actions apparently lawful and praiseworthy in themselves, we can find nothing on which to justify these instructions, based on the idea of a conspiracy. The deceased began the quarrel and forced the fighting from the beginning. The defendant was on his own premises both on the twenty-fifth and twenty-sixth days of December. He was feeding and salting his own cattle. The deceased was the sole aggressor on both days.

Under such a state of evidence it is error for the court to even intimate that defendant began or provoked the difficulty. He submitted to the assault on Christmas day and like a good citizen appealed to the courts to right the wrong. His going to his own farm the next day, to salt his cattle, and fence his haystacks, cannot, in the light of his conduct after reaching the farm, by any fair intendment, be construed into a seeking of deceased. For the reason, that there was no evidence to justify these instructions, it was error. State v. Bailey, 57 Mo. 131.

The court erred in refusing to instruct the jury upon the law of self-defense. When it is considered that the deceased made a violent and unprovoked assault on defendant on the day previous to the homicide ; that deceased was a man forty years of age, and weighing one hundred and eighty to two hundred pounds, six feet tall; that he held an iron chain, some six feet long, in hand; that he was very angry; that defendant was a man sixty-five years old and suffering with heart disease ; that deceased had come out of his way to renew the quarrel of the previous day; and had begun the affray by knocking John Harrod down and was advancing with the drawn chain and was only six or seven feet from the old man, the defendant, it seems clear that the right of self-defense on the part of defendant became complete at that moment, and whatever right the defendant had, the son had for the protection of his father.

Certainly it should have been left to the jury, under a proper instruction, to say whether Preston Harrod had not reasonable cause to apprehend a design on the part of deceased, Fallis, to kill his father or do him some great bodily harm and that there was cause to apprehend immediate danger of such design being accomplished and that he killed deceased to prevent the accomplishment of such design,. and if so to acquit the defendant.

For if Fallis was killed by Preston Harrod under these circumstances no crime had been committed in killing him, as there was no evidence to justify the court in saying that either the defendant or his sons had provoked or brought on the quarrel. And in such a case it was not necessary that the defendant should be in actual danger; it was sufficient if there was reasonable ground to believe such danger was real and imminent. Goins v. State, 46 Ohio St. 457; R. S. 1889, sec. 3462; State v. Starr, 38 Mo. 270; State v. Eaton, 75 Mo. 591; Pond v. People, 8 Mich. 150; Nichols v. Winfrey, 79 Mo. 544.

For the errors mentioned, the cause is reversed and remanded for a new trial.