50 Mo. 357 | Mo. | 1872
delivered the opinion of the court.
The defendant was indicted for killing one Evans, and- on the trial the jury found him guilty of murder in the second degree, and assessed his punishment at sixteen years in the penitentiary.
It seems that the defendant had been on terms of amity and good-will with Evans till the day before the killing took place. On that day they met at the house of a friend, together with other company, when the defendant treated Evans with friendship and civility. . But Evans had ascertained that the defendant was engaged to be married to a niece of his wife, and was greatly enraged about, it, and, instead of returning the kind treatment of the defendant, he violently assaulted him with a pistol and knife, and swore that he would kill him, and that nothing but his blood would satisfy him. Through the intercession of friends he was kept from carrying out his purpose or hurting the defendant; but the defendant, in order to save himself from violence and death, was obliged to hide in another room, and finally make his escape from a back door.. After this occurrence Evans renewed his threats ; declared that he would make no compromise in reference to the’ matter; that he would kill defendant on sight, if it was the last act of his life. These threats were communicated to defendant the same evening.
It further appears that on the morning after the occurrence above referred to, and some two hours prior to the killing, the
At the trial the court excluded all evidence of what occurred on the day previous to the killing, and the threats made by the deceased in reference to his intention to kill the defendant. In this, .the court unquestionably erred. This whole transaction, and all. the matters connected with the difficulty, are so nearly allied that, it is impossible to separate them. From the inception to the fatal, consummation less than twenty-four hours intervened. The-threats continued down uninterruptedly, and were all nearly coeval ¡ with the killing, and they were all brought home to the knowledge . of the party who did the slaying. They constituted the chain ofj
The court also erred in refusing the evidence offered by the defendant to show that the deceased was a violent, dangerous and desperate r^an. The 'character of the deceased would afford no justification, or even palliation, if it should be found that the defendant was the aggressor. Where a person commits a homicide without a reasonable cause to apprehend immediate danger of violence to himself, he cannot interpose the defense that the person whom he slayed was a dangerous and vicious man. All people alike are under the protection of the law. ‘ ‘ But the imminence of danger that will justify us in acting upon the instinct of our nature, in repelling a blow before it is received, often depends upon the character of the assailant. The menacing attitude of a person generally-.peaceable and law-abiding would often excite no just apprehension of danger, while similar conduct on the part of a fierce, vindictive and passionate man would naturally alarm our fears, and make us prompt in anticipating his purposes. When danger is threatened and impending, we are not compelled to stand with our arms folded until, it is too late to strike, but the law permits us to act on reasonable fear; and therefore when the killing has been under circumstances that create a doubt as to whether the act was committed in malice or from a sense of real danger, the juey have the right to consider any testimony that will explain the motive that prompted the accused.” (The State v. Hicks, 27 Mo. 588.)
When the homicide is committed under such circumstances that it is doubtful whether the act was committed maliciously, or from a well-grounded apprehension of danger, it is very proper .that the jury should consider the' fact that the deceased was turbulent, violent and desperate, in determining whether the accused had reasonable cause to apprehend great personal injury to himself. If such evidence is ever legitimate, the facts in this ease show that it was one calling for its introduction.
For the errors hereinbefore alluded to, the judgment must be' reversed and the cause remanded.