196 Mo. 164 | Mo. | 1906
At the April term, 1905, of the circuit court of Taney county, the prosecuting attorney of that county filed an information, duly verified, charging the defendant with murder in the first degree of one Charles Knight, on the 7th of February, 1905, at said county. At the June term, 1905, the defendant was tried and convicted of murder in the second degree, and his punishment assessed at twelve years in the penitentiary. In due time he filed his motions for new trial and in arrest of judgment, which being overruled, he was sentenced in accordance with the verdict, and from that sentence he appeals.
The State’s evidence tended to show that on the night of February 7, 1905, there was a dance at the home of Jeff Clayton, near the town of Hercules, in Taney county. The defendant and the deceased went to this dance. The defendant was the1 escort of Miss Bertha Wright, and the deceased of another young lady. The evidence shows that the deceased and other young men were drinking considerably that night, though there had been no other trouble. During the evening, the deceased and the defendant were standing facing each other in front of the fireplace. Deceased said to defendant that he was a better man than defendant was, to which defendant replied that he would have to he shown; deceased then stated that if defendant would go out of the house, he (deceased) would show him, and defendant said he would go any place; and in a moment both of them went out of the front door into the yard, defendant going first. As defendant turned and started toward the door, he put his hand in his pocket, and when they reached the yard, the evidence for the State tends to show that before deceased had made any movement towards the defendant, defendant took hold of the deceased by the collar and struck him on the neck, and then hit him six or seven times, the deceased striking hack. The defendant then threw the deceased towards the gate, or as expressed by one wit
On behalf of the defendant, the evidence tended to prove that the deceased had asked Miss Mary Burns to go with him to the dance, but she declined; he insisted, saying that it was his last dance in Taney county, that if she did not go, she would wish that she had gone, as something was going to happen. It also appeared in evidence that on the day prior to the dance, deceased stated to one John Howard, that he (deceased) was going to said dance to make the people dance when he said dance and to run things. That he was going to leave the county, and was going to lick somebody, or get a licking. That deceased carried a pistol the night of the dance, and he objected to Miss Maud Cranfield. dancing with George Adamson, and said that he would shoot Adamson if she danced with him. It appeared that on the Sunday before the dance, defendant and deceased called together at the home of a Miss Bertha Wright, and a Miss Dinah Robins was there. The defendant spent most of his time talking to Miss Wright, and the deceased to Miss Robins; that when defendant and Miss Wright entered the room, deceased was lying on the bed; and Miss Wright said if he didn’t get up she would whip him. This familiarity displeased the defendant, and he told Miss Wright she could take
The defendant testified, in his own behalf, that deceased was standing by the fire and he walked up to him and deceased began talking about Bertha Wright and he said he could beat my time, and I told him “all right he could do it to-night if he wanted to,” and he said, “No, I would not do it to save your life.” He then said, “If you had not passed me to-night, I would take you out and beat h— out of you,” and I said, “I don’t know whether you would or not,” and he said, “If you go out doors I will show you',” and I said, “Now, there is no use of us having any trouble,”' and he said, “Don’t get mad,” and gave me a shove on the shoulder, and when we got into the yard, he took hold of my coat collar and said,“ You know I can beat h— out of you,” and he took hold of my coat collar and struck at me and reached his hand in his pocket, aud when he did that, I put my hand in my pocket and got my knife and went to cutting. He got his revolver and shot at me, and I stooped down to the ground and he shot over me. Defendant identified the knife with
In rebuttal, the State proved by two witnesses that defendant’s witness, Charles Carlyle, was not near the defendant and the deceased at the time of the difficulty, but was in another room. At the close of the State’s evidence in rebuttal, the record recites: “The defendant objects to the court closing this case for the reason that there was evidence in rebuttal which they purpose to offer, but cannot on account .of the witness not being in the court room. Thereupon the case closed and the court proceeded to instruct the jury.”
The court instructed the jury on murder in the first degree and defined the terms willfully, deliberately, premeditatedly, malice, and malice aforethought. The court also instructed on reasonable doubt, previous good character of the defendant, credibility of witnesses, and self-defense. The defendant prayed the court to give eight instructions, which the court refused, and the defendant saved his exceptions to the giving of those on behalf of the State and to the refusal of those prayed by his counsel. Various errors are assigned for a reversal of the judgment,o'f the circuit court, and these will be considered in the order of defendant’s brief.
I. The point is made that the copy of the information served upon the defendant was not certified by the clerk of the court. In support of this proposition, we are cited to the case of State v. Schmidt, 137 Mo. 269. There can be no doubt under our statute that a defendant charged with murder in the first degree is entitled to a copy of the information before he is re
II. It is next insisted that the verdict of the jury is against the evidence. As to this it is sufficient to say that there was a direct conflict between the evidence for the State and that for the defendant. It may be conceded that if all of the defendant’s testimony was true, and the jury had believed it, the verdict might well have been one of acquittal, but the evidence was a matter for the consideration of the jury, and by their verdict it is evident that' the jury did not believe the testimony for the defendant and his witness Carlyle, and this was the province of the jury. It is evident, moreover, that there was more or less ill feeling between the defendant and the deceased over the witness Miss Wright. The evidence on behalf of the State indicates that before the deceased had struck or attempted to strike the defendant, after they had retired to the yard to settle the question of their physical power, the defendant began to strike the deceased about the neck and shoulders; and it was subsequently developed that these blow£ were made by a knife and resulted in the death of the deceased. In” State v. Underwood, 57 Mo. l. c.
III. Error is assigned because the witnesses Burris and the two Lawsons, who had been subpoenaed for the State, went home and defendant did not have an opportunity to place them upon the witness stand after the State had closed its case in rebuttal. As to this proposition, the record shows that when the State closed its case in rebuttal, the defendant objected to the court closing the evidence at that point for the reason that the defendant had other witnesses whom he purposed to offer, but could not because the witnesses were not in the court room. The court was not advised who the witness or witnesses were, nor upon what point they were to be called in rebuttal, and no exception was saved to the action of the court in closing the case. The point now made that these witnesses were excused by the sheriff is not supported either by affidavit of the defendant himself or the witness Burris, Moreover, the affidavit of the defendant himself discloses that during the trial he was informed that Burris would contradict the witnesses Mowrey and Morgan,
IY. In his motion for new trial the defendant assigns as error the giving of instructions 4 to 7 inclusive. Instruction 4 given by the court is in these words: ‘ ‘ The court instructs the jury that before you can convict the defendant, you must believe him guilty beyond a reasonable doubt, but a doubt to authorize an acquittal must be a substantial doubt based on the evidence and not a mere possibility of innocence.” This instruction is substantially the instruction on reasonable doubt approved in State v. Nueslein, 25 Mo. 111, and State v. Knock, 142 Mo. l. c. 524. Instruction 5 told the jury that the previous good character of the defendant if proved to their reasonable satisfaction oug'ht to be considered by the jury in passing upon the guilt or innocence of the defendant, because the law presumes that a man whose character is good is less likely to commit a crime than one whose character is not good, but if all the evidence in the case, including that which had been given touching the previous good character of the defendant, showed him to be guilty of the charge, then his previous good character could not justify, excuse, palliate or mitigate the offense. This . instruction was as favorable as the defendant could ask and has often been approved by this court. Instruction 6 was the usual instruction and
The defendant likewise complains of the refusal of certain instructions asked by his counsel. There was no error in refusing the first instruction asked by the defendant on the subject of reasonable doubt and presumption of innocence. This point was fully considered in State v. Kennedy, 154 Mo. l. c. 287, 288
Again, it is insisted that the court erred in not giving the defendant’s instruction 2 in regard to his right to testify in his own behalf. As the court had already properly instructed on this subject, no error was committed in refusing this instruction. Instructions 3, 4 and 5, requested by defendant, declared the law of self-defense. They are each in substance the same as that given by the- court of its motion on self-defense, except that they are more elaborate and inform the jury that the danger the defendant apprehended need not have been actual or real and about to fall upon defendant, but it was sufficient if there was reasonable cause on his part to apprehend it, and in the fourth that it was not required of him that he should nicely gauge the amount of force necessary to be used to protect himself from the apprehended danger. These instructions are well enough in a proper case and the defendant is entitled to them if the facts justify them, but we think that in this case the instruction given by the court was all that was necessary to advise the jury on the law of self-defense. Indeed, in view of the testimony there can be no doubt that this was a case of agreed mutual combat and that from the very beginning defendant used his knife on deceased, inflicting a mortal wound from which deceased died. In giving an instruction at all on the subject of self-defense, the court was exceedingly fair to defendant, and he has no ground to complain that the jury found that he was not acting in self-defense, but was using a deadly weapon on his adversary from the start. Instructions must be based upon testimony
No error was committed in refusing instruction 7, because the court had already instructed'on reasonable doubt. Finally, it is now for the first time insisted that the court should have instructed on manslaughter in the fourth degree. No such instruction was asked by defendant and no exception saved to the failure of the court to instruct on all questions of law applicable to the facts of the case. Moreover, the failure to instruct on Manslaughter is not made a ground of the motion for new trial, and hence the point is not before us for review, but if it was, we do not think the evidence would have justified it. The judgment must be and is affirmed.