278 Mo. 532 | Mo. | 1919
The defendant was charged by information with murder in the first degree, in having shot and killed Albert E. Demortiers, in the City of Qape Girardeau, October 27, 1917. Upon a trial, he was convicted of murder in the second degree, and his punishment assessed at eighteen years’ imprisonment in the Penitentiary. Prom this judgment he appeals.
About 9:30 p. m., the night of the murder, defendant showed one Thompson four or five 32-caliber revolver cartridges and said he was “going to get a dirty s— of a b— that night.” Thompson adjured him to keep out of trouble. Thereafter, at about 11:10 p. m., defendant was seen talking to the deceased, a policeman in uniform, on the corner of Broadway and Sprigg Streets, in Cape Girardeau. The deceased told the defendant if he didn’t behave he would have to get off of ■ the street or go home, or he would be locked up. The latter replied that the deceased was a d- liar and was the same policeman who had run him home from downtown. The deceased turned and laughingly said to a bystander:. “He mistakes me for another man.” Defendant then went into a near-by saloon, and the deceased went east on Broadway. Ten or fifteen minutes later the defendant and the deceased met in front of another saloon. While the deceased was engaged in conversation with one O’Connell, defendant stepped up behind them and said: “What are you fellows doing out here so late?” Deceased answering him, said: “Dad, you’d better go into the saloon or go home.” Deceased then proceeded west on Broadway, followed by the defendant. A few minutes later one Minton, also going west on Broadway, heard a shot
The deceased, when examined by those who hurriedly reached the scene, was still breathing, but died in a few minutes thereafter, without regaining consciousness. An examination of his body disclosed two bullet wounds; one had entered the right temple at the hair line, the outer skin aroiind the wound being powder-burned. This wound entered the skull and was fatal.
After defendant’s arrest he was taken to the jail. At that time he had no marks or bruises on his person, blood on his clothing, or any evidence of having engaged in an altercation. After being lodged in the jail, the chief of police and three other officers, at about 1:30 a. m., went to the jail building, opened his cell and called to him to come out. He rushed out at the chief, who hit him on the head with a billy. Straightening up from the effect of this blow, he again rushed at-the chief, who struck him a second time, from which blow he fell, the blood running down over his clothing. After he fell, the officer struck him several times with the strap end of the billy.
The testimony on behalf of the defendant was substantially as follows:
That his reputation as a law-abiding citizen was good; that on the evening of the killing he went home about ten o’clock p. m.; that about 11 o’clock he went back to town for a walk. After taking a drink at a saloon, he walked out on the street where he saw the deceased and another engaged in conversation, and asked them what they were doing out so late at night. Deceased told him he had better go inside br go home, or he would get hurt. Defendant then started home, going west on Broadway. Deceased stopped the defendant at the corner of Broadway and Middle Streets, where, at the time, the former was standing close to a lamp post. The deceased asked defendant if he had not told him to go home, and defendant said, Tes. Deceased then asked defendant where he was going, and he answered that he was going home. Thereupon the deceased asked the defendant if he had not told him he would get hurt if he did not go home and defendant said: “Who would hurt me?” Deceased replied, “I will,” and struck defendant with his fist, and kicked defendant in the groin, knocking his cane out of his hand. Defendant stooped to pick up his cane, and
The remoteness of the threat in the ease at bar was not a ground for its exclusion. This might, if sufficient time had elapsed between the making of the threat and the commission of the crime, have affected its probative force, but not its admissibility. In State v. Hyder, 258 Mo. 1. c. 230, the threat admitted in. evidence was made a year prior to the crime. We, therefore, overrule the contention as to the inadmissibility of the threat.
III. Defendant complains of the giving of the following instruction:
• The phraseology of this instruction is alleged to be erroneous and prejudicial in that it tells the jury that the defendant was justified in acting, defensively if he had “good reason to believe and did believe” that it was necessary for him to so act to protect himself from personal injury by the deceased, instead of using the language of the statute (Sec. 4451, R. S. 1909), that he had ‘ ‘ reasonable cause to believe and did believe,” etc. A distinction is attempted to be made between the use of the words “good reason” and “probable cause,” as employed in the one instance in the instruction, and the other in the statute, and the aid of lexicographers is invoked to show that the differences in the meaning of these words is sufficient to render the instruction invalid in not correctly defining the defendant’s right in this behalf; the burden of this contention being that “a good reason” must have a foundation in fact, while a “reasonable cause” may rest upon appearances alone. Disconnected from their settings in instructions, of this character, a technical support may be evolved for this contention, but it is purely technical. This instruction read as a whole shows clearly that it was not the real, but the apparent danger which would justify defensive action. This being true, the jury could not have been misled as to the defendant’s right in this behalf, which, under the facts, was in nowise different than if the words a “reasonable cause” had been employed in stead of a “good reason.”
Neither the McKenzie (177 Mo. l. c. 715) nor the Gordon (191 Mo. l. c. 122) case sustains the defendant’s contention. In the McKenzie case the instruction was in the language of the statute, and no question was involved as to the use of other or different terms. In the Gordon case the instruction as construed by the court was so framed as to. impress the jury that be
As sententiously stated by counsel for respondent in the instant case: “If one has good reason to be,lieve he must have a reasonable cause for such belief; and, if he has a reasonable cause for his'belief he must have a good reason for same.” Errors must be of hurtful effect to warrant a reversal; we do not so find the one here complained of.
V. The instruction as to the credibility of witnesses is held to have been erroneously given. Its form is not criticised, but it is contended that there was no conflict in the testimony, and hence the instruction was unauthorized. The transcript discloses that this conclusion is incor • rect. The defendant’s testimony was directly in conflict ■with that of all of the witnesses for the State; and there, was as sharp a conflict between the testimony of the witnesses for the State and those of the defendant in regard to the threats of the defendant. The giving of the instruction was, therefore, not error.
This case viewed from that impartial attitude which should characterize a review of the record, discloses no substantial defense. The murder was a ruthless one, and the light sentence given the defendant under the circumstances must, be attributed to the ability and