253 Mo. 427 | Mo. | 1913
Upon an information charging murder in the first degree, defendant was tried in the circuit court of Christian county, Missouri, resulting in his being convicted of murder in the second degree and his punishment being assessed at ten years in the penitentiary. The case originated in Taney county, Missouri; but was removed by change of venue to the circuit court of Christian county, Missouri. Defendant by proper steps appeals from the judgment of said circuit court.
The State’s evidence tends to prove the following facts: Defendant shot and killed one Enos Rush, at about five o’clock p. m., January 4, 1912, at Bran-son, Taney county, Missouri, where both the defendant and the deceased lived. The shooting occurred in the grocery store and meat market of M. L. Heflin. Up until about a week prior to the shooting, Rush, the deceased, had been working for said Heflin in the meat market; but had been drinking for about a week and had quit the employment. About an hour before the shooting, deceased went into Heflin’s store and again
Defendant testified, in his own behalf, as follows :
“On the 4th day of January, 1912, about five-o’clock in the evening, or half past five, I started to go home for supper and I was going by Major Heflin’s after some butter and going by Mr. Patterson’s
Defendant further testified that he at no time made any threats to kill deceased; that he knew the deceased had made an attempt to file complaint against him for selling whiskey; that he fired the first shots while holding the revolver down at his side and that
The State offered the following testimony in rebuttal: Mary Breeden testified that she saw the defendant and deceased come out of Heflin’s store about
OPINION.
I; Appellant contends that the circuit court erred in overruling his application for a continuance. The motion for a continuance, together with a recital that the court overruled the same, is properly set forth in the bill of exceptions; but nowhere in the bill of exceptions does it appear that an exception was saved to the action of the court thereon. The point is therefore not properly raised for appellate review. [State v. Prather, 136 Mo. 20, and cases therein cited.]
II. Witness Lewallen testified for the State as to threats made by defendant upon the life of deceased. Defendant produced six witnesses who testified that the general reputation of the witness for truth and veracity was bad; three of said witnesses testified about his general reputation at Branson and three about his general reputation while he resided at Springfield. Later the State, in rebuttal,' used three witnesses who testified that the general reputation of Lewallen, in that regard, was good. The defendant, thereafter, offered three additional witnesses to testify further concerning the general reputation of said witness and the trial court refused to allow the three additional witnesses to testify, assigning as reason therefor that defendant had used six witnesses for that purpose. Appellant contends that this constituted error. The general reputation of the witness, Lewallen, was a collateral issue in the case. The trial court is, and should be, allowed a rather wide discretion in limiting the number of witnesses that may testify on such issues. [Railroad v. Aubuchon, 199 Mo. 352, l. c. 360; State v. Lamb, 141 Mo. 298.] It is not apparent that the trial court abused its discretion, in that regard, and the point is ruled against appellant.
III. Appellant next contends that the court erred *n refusing to give his instruction A, which in part declared that when a person has reasonable ground to apprehend that some one is about to do him great bodily harm, etc., “he may act upon appearances,” etc. Instruction 13, given by the court, fully covered the law of self-defense and, as to the above point, told the jury that it was not necessary that the danger should have been actual, etc., but that the defendant must have believed and also had reasonable cause to believe that said Rush was
Appellant’s refused instruction D declared that if “defendant shot to prevent the deceased from killing him or doing him some great bodily harm then defendant had a right to shoot and keep shoQting until such danger, or apparent danger, had passed, or ceased.” Appellant insists that deceased was on his feet and advancing toward defendant when the last shot was fired, and that this instruction should have been given. A careful examination of the evidence, however, fails to disclose any evidence tending to show that deceased was advancing toward defendant, after the first shot and before the last shot was fired, and there was, therefore, no evidence upon which to base such an instruction.
Appellant’s refused instruction B declared the law with reference to the presumption of defendant’s innocence; but that matter was fully and fairly covered by instruction 3, given on behalf of the State.
Appellant next contends that instruction 6, given by the court,- was erroneous. Said instruction is as follows:
“The jury are instructed that in law it is the same offense to kill a bad man as it is to kill a good man, and although the jury may believe from the evidence that deceased, when intoxicated, was a bad or quarrelsome man, this fact alone will not justify, or excuse the defendant for the killing of the deceased.”
While it was not necessary that the above instruction should have been given, yet it contains a correct declaration of law and, under the evidence in the case, was not improper. The identical instruction was ap
"We have carefully examined the entire record of the ease. The evidence was amply sufficient to support and justify the verdict of the jury; the instructions fully and fairly declared the law applicable to. the facts in the case, and it appears that the defendant has bad the privilege of a fair and impartial trial.
The judgment is affirmed.
PER CURIAM. — Tbe above opinion of "Williams, C., is adopted as tbe opinion of tbe court.