178 Mo. 433 | Mo. | 1903
From, a conviction of murder .in the second degree, and the assessment of his punishment at ten years’ imprisonment in the penitentiary, under an information filed by the prosecuting attorney of Douglas county, in the office of the clerk of the circuit court of said county, charging the defendant, Columbus Hicks, with having at said county on the first day of December, 1901, shot to death with a rifle gun one Hez Clay, defendant appeals.
At the time of the homicide, and for many months prior thereto, the deceased and defendant’s sister, Ghristeeny Hicks, were engaged to he married, and were to have been married on the 25th day of December, 1901. He was very attentive to her, and she spent most of her time with him. The defendant, his father and mother were opposed to the attentions of deceased towards the young lady, and had ordered him to remain elsewhere than at their home. Matters grew more unpleasant as time passed, and the daughter was compelled to leave the home and seek an abiding place wheresoever she might. The bitterness of feeling between the deceased and defendant did not wane but grew more intense, and they each began to threaten the life of the other.
On behalf of the defendant, the evidence tends to show that the deceased was criminally intimate with defendant’s sister; that he on one occasion remained all night at the home of the defendant and occupied the same bed with her; that the defendant’s father urged the defendant to either marry his daughter, or else remain apart from her; but that deceased continued his attentions and persisted in the liaison. Defendant testified that the deceased at the moment he was killed was in the act of copulation with defendant’s sister, and that the deceased being discovered by defendant placed his hand behind him as if to draw a pistol, whereupon he was killed by defendant, but this was denied by both the sister and Goss, the only witness to the occurrence. It is admitted that the deceased was killed early in the afternoon upon a public thoroughfare, and that he and the young lady were standing in full view of Goss.
The court over the objection and exception of defendant gave a large number of instructions, but only the following are complained of:
“21. The law of self-defense does not imply the right to attack. If you believe from the evidence that the defendant armed himself with a deadly weapon and sought the deceased with the formed felonious intent of killing deceased, or sought, or brought on or voluntarily entered into a difficulty with deceased, with the felonious intention to kill deceased, then the defendant can not invoke the law of self-defense, no matter how imminent the peril in which he found himself placed.
“22. The court instructs the jury that if you believe from the evidence that the defendant shot and killed deceased because of the alleged attempt of said deceased to draw a weapon on defendant and not because he saw the deceased in the act of sexual intercourse with his sister, then you will not consider such act of sexual intercourse, if they were in such act, or the previous sexual relations of deceased and Tennie Hicks, if such relations existed, but you will confine yourself to the question whether the defendant shot in the necessary defense of his person as the law of self-defense is herein defined.
‘ ‘ 23. Although the jury may believe from the evidence that the deceased and Tennie Hicks were criminally intimate, this would not in law justify or excuse the defendant in lying in wait to shoot and kill deceased, if you believe from the evidence he did so lie in wait; so if the jury believe from the evidence that the defendant followed the deceased and shot him from ambush, feloniously, premeditatedly and with his malice aforethought as the terms are in these instructions defined, then the criminal relation between said deceased
The defendant asked the court to instruct the jury as follows:
“1. -The law accepts human nature as God has made it, or as it manifests itself in the ordinary man, and every sort of conduct in others which usually excites the passions of the mass of men so as to practically overthrow their reason, the law holds to be a sufficient cause for provocation, and in this connection it must not be forgotten what high estimate the men of all nations have placed upon the chastity of their women, and the inviolability of their persons, and therefore if the jury believe from all the facts and circumstances in evidence, that Clay had been criminally intimate with the defendant’s sister; that at the time of the homicide defendant, being armed for his own defense only, because of communicated threats of deceased made against his life, came suddenly and unexpectedly upon deceased in criminal intercourse with his said sister, and that in consequence of such sight defendant’s mind became inflamed with anger and passion, and without deliberation or premeditation he instantly fired the fatal shot; and if the jury further believe that such conduct on the part of the deceased was reasonably sufficient provocation to inflame the blood under such circumstances — in such case defendant is not guilty of murder and the verdict should be for manslaughter in the fourth degree.
“2. The court instructs the jury that if-they believe from the evidence that the killing of deceased was committed by defendant, and the defendant in so killing deceased acted upon a sudden passion, engendered by reasonable provocation, then the presumption of malice would be negatived, and the killing, though intentional, will be manslaughter in the fourth degree.
“4. The jury are instructed that in considering the right of self-defense they have to take into consideration all the circumstances .leading up to the homicide, and the present conditions and situations of the parties as. they appeared to defendant, and if they believe that such circumstances and conditions, as they appeared to defendant, were such as to become reasonable grounds for apprehension and fear by defendant, that he was in imminent danger of great bodily harm from deceased and Goss acting in concert with him; and further, that defendant did, at the time, entertain such fear and apprehension ; in such case the shooting by defendant was justifiable and the jury will acquit.
“5. That if they believe from the evidence that for several months it had been brought to defendant’s knowledge that deceased was threatening his life, and carrying weapons with which to put such threats into execution; that only a few hours before the homicide deceased and one Goss came to defendant’s home and repeated such threats; that thereafter, on the same day
“6. The court instructs the jury that if they believe from the evidence that defendant is guilty, but entertain a doubt as to whether he is guilty of murder or manslaughter, then they should give defendant the benefit of the doubt and find him guilty of manslaughter, and if they have a reasonable doubt as to whether he is guilty of any offense against the law as defined in these instructions, they should acquit.
“7. The defense presents two theories of this case, founded on two different states of mind, but both of which under appropriate circumstances may very well co-exist in the mind of man at one and the same time. One such state of mind is fear and apprehension of danger, and the other is indignation. In this case defendant may have been in mortal fear of personal in
Which instructions were by the court refused, and the defendant then and there excepted.
Instruction numbered twenty-one is challenged upon the ground that it does not go far enough, in that it does not tell the jury that if defendant entered into the difficulty without the intent to kill the deceased, then he would only be guilty of manslaughter in the fourth degree. We are unable to agree to this contention and
It is argued that instruction numbered twenty-two is erroneous upon the ground that it singles out a certain fact, that is, that defendant shot and killed deceased in self-defense.
That this instruction ought not to have been given for the want of evidence to authorize it, is, we think, too' clear for argument, for there was no evidence of self-defense in the case. In fact there was not a particle of evidence that deceased saw defendant at the time he was shot. It is true that defendant testified that he wouldn’t have shot if deceased had not made a pass for his pistol, which in the absence of some evidence that deceased saw him or knew of his presence was not of a feather’s-weight and entirely insufficient upon which to predicate the instruction. But it was an error in favor of defendant, and harmless. We see no substantial objection to instruction number twenty-three. It was well warranted by the evidence, and very favorable to the defendant.
Instructions numbered one and two, asked by defendant, were covered by instruction numbered twelve
The insistence that the court erred in permitting the State to introduce in evidence the affidavit filed by defendant for a continuance, can not be considered for the reason that it is not incorporated in the bill of exceptions. And for the further reason that the record does not show that it was introduced in evidence. [State v. Hancock, 148 Mo. 488.]
A point is made on the sufficiency of the information which defendant says is invalid for the want of verification by the oath of the prosecuting attorney or some other competent person. This point was raised by motion in arrest in the court below, and is now insisted upon in this court. Since the Acts of the General Assembly, approved March 13,1901 ‘(Laws 1901, pp. 138,139), went into effect, which was before the information in the case in band was filed, all informations are required to be signed by the prosecuting attorney and to be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information (sec. 2477, R. S. 1899; Laws 1901, supra; State v. Bonner, 178 Mo. 424); but the affidavit is not required to be signed by him. It will be observed - that the information was in fact signed by the prosecuting attorney, and the clerk of the court in which it was filed having certified under his hand and the seal of the •court that the “prosecuting attorney makes oath and says that the facts stated in the information are true, according to his best knowledge, information and belief,” it was a substantial compliance with the statute.
It was inadvertently said in the case of State v. Pohl, 170 Mo. 422, that an information for felony filed
It is asserted by defendant that the judgment is erroneous upon tbe ground that it does not show that the defendant was present when it was rendered against him, but this is a misapprehension, as the record shows in express terms that defendant and his attorneys were present in court when the verdict was rendered and judgment rendered thereon.
There were a number of instructions given without any evidence upon which to bottom them, but all such .were in favor of defendant. Taken as a whole the instructions were more favorable to him than he had any right to expect.
The judgment should be affirmed. It is so ordered.