I. As there were no errors committed against the defendant in the court below, either in giving, or in refusing, instructions, or in the admission or rejection of evidence, the judgment should, as to those points, unquestionably, be affirmed.
Instead of the verdict being for too high a grade of homicide, the only wonder resulting from a perusal of the evidence is, that the jury were not permitted to inquire as to the defendant’s guilt of murder in the first degree. The circumstances already related would surely furnish a sufficient basis for a conviction of that grade of crime. Indeed, it may, with confidence, be said that the whole range and realms of the annals of criminal jurisprudence scarcely furnish a more shocking and flagrant example of a cowardly and brutal murder unredeemed by a single palliating feature and unextenuated by a single substantial cause or excuse. Look at the case in outline: A man eighty years of age goes hobbling along on his crutch, bearing on his aged' shoulders a satchel containing the materials of his humble vocation. It is winter time, and cold; nightfall is about to overtake him on the public highway, and he applies at Murray’s for shelter for the night; it is denied him, and so he goes trudging along to seek elsewhere. Nearing another dwelling he is passed by two young men in a buggy. It is then about dusk, but sufficiently light for them to easily discern what manner of man the wayfarer is (this is shown by the gratuitous falsehood told by defendant that, “there is an old man down in the road, and he will burn the barn unless,” etc.). Shortly thereafter, the old man is approached on' the public highway by two young men,
If these touching incidents of soul-sickening barbarity and brutal ferocity do not make out a case of “a heart regardless of social duty and fatally bent on
We have said that the poor old cripple had the right to reply as he did to defendant’s impertinent and taunting questions; this is true, even if he added to his answer the expletive of an oath. Such answers cannot be regarded as insulting, and mere words in such circumstances are no provocation; but if they were, and even if the old man “shoved” defendant away from him and afterwards raised his hand as if to strike him (as to which there is only defendant’s unsupported testimony contradicted by that of young Jackson), still this would neither justify, excuse nor palliate defendant’s subsequent .outrageous conduct, out of all proportion, as it was, to what the old man had done, conceding it to be true that the deceased really used insulting words and did “shove” him.
This point is well illustrated by East, touching the subject of homicide in hot blood, where he says:
“It must not, however, be understood that any trivial provocation, which in point of law amounts to an assault, or even a blow, will of course reduce the crime of the party killing to manslaughter. This I know has been supposed by some, but there is no authority for it in the law. Eor where the punishment inflicted for a slight transgression of any sort is outrageous in its nature, either in the manner or the continuance of it, and beyond all proportion to the offense, it is rather to be considered as the effect of a brutal and diabolical malignity than of human frailty; it is one of the true symptoms of what the law denominates malice; and therefore the crime will amount to murder, notwithstanding such provocation. Barbarity, says Lord Holt, in Keate’s case, will often make malice. 1 East P. C. 234. To the same effect see 2 Bishop’s New Criminal Law, sec. 703; and cases cited.
Blackstone says: “Also, if, even upon a sudden provocation, one beats another in a cruel and unusual manner, so that he dies, though he did not intend his death, yet he is guilty of murder by express malice; that is, by an express evil design, the genuine sense of malitia. As when * * * a school master stamped on his scholar’s belly, so that the sufferer died, this was justly held to be murder, because the correction being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate. act of slaughter.” 4 Bla. Com. 199.
Under these authorities and in the circumstances already stated, even if it be true that the old man replied to defendant’s impertinent and insulting questions, “none of your d-n business,” and shoved bim and raised his hand as if to strike him, the subsequent atrociously malignant and barbarous conduct towards him, an aged and helpless cripple, establishes such a ease as would have well warranted an inquiry by the petit jury, as to whether the defendant was not guilty of murder in the first degree, and it does not admit of doubt that their inquiry should have been confined to that degree. Of course there could be no manslaughter in either degree in the circumstances of this case, and that inquiry should not have been submitted'to the jury.
II. Was an instruction authorized on the theory of self-defense? This is the remaining point to be considered. As shown by the statement heretofore
The right of defendant again to attack his helpless victim did not arise, and could not arise, until he had done everything in his- power to avoid doing so. If he could safely have avoided jumping on the prostrate form that lay bleeding before him, it was his duty to have done this, for otherwise he would not have been justified. State v. Johnson, 76 Mo. 121. The duty of defendant was to retreat, or at least to avoid proceeding to the last resort, to the exercise of the extreme right of self-defense, so long as was consistent with his own safety; and certainly there was no such fierceness of assault in this case as sometimes forbids retreat and justifies instantaneous action. State v. Thompson, 83 Mo. 257; 1 Wharton on Criminal Law [9 Ed.], sec. 486a; 1 Bishop’s New Criminal Law, secs. 843, 844, 872.
Besides, one who claims to have acted in self-defense must act without fault or carelessness. 2 Bishop’s Criminal Law, sec. 644. He cannot act on bare conjecture or surmise, and then claim he had reasonable ground for his acts and extreme necessity for his justification. In the present instance, defendant seemed all too eager for the attack, and jumped on the old man without even looking to see if he was getting or had. a pistol. Moreover, that defendant was not acting in self-defense is shown by his conduct throughout the whole series of murderous assaults which he made, and by the final kick in the head, which he gave his decrepit and aged victim after he was pulled off of him the last time. These circumstances show a cruel and malignant heart, and not a reasonable apprehension of immediate and impending danger. State v. Gilmore, 95 Mo. 554; State v. Tabor, 95 Mo. 586.