| Mo. | Feb 6, 1900
To a charge made against defendant of murder in the first degree, the jury returned a verdict of murder in the second degree, assessing the punishment at its minimum, 10 years in the penitentiary.
The story of the occurrence made the subject of indictment, is substantially this: Defendant kept a second-hand store where he bought, sold, and sometimes exchanged such articles as are usually kept in such establishments. He was a man nearly 64 years of age and wore glasses. Faulk, the other person mentioned in the indictment, was a laborer some 34 years old. He had been a frequent customer of defendant’s and for articles purchased had been given credits by defendant to the amount of small sums and other little accommodations of that kind from time to time, which, it seems, produced in the end the average yield of that crop called gratitude. The latter part of June, 1898, Faulk bought a stove of defendant and the latter agreed that he would allow Faulk $3 on the purchase, to be paid with an old stove that Faulk had at home, provided it corresponded to the description which Faulk, in making the bargain, gave of it. So, Faulk took his purchase
Arriving there, Eaulk and defendant went through the store to the back part to examine and talk over the dispute-producing stove. Having concluded their inspection, Eaulk and defendant returned to the front part of the store where the conversation was renewed about the stove, Faulk insisting that he should be allowed $3 credit for the old stove, and when defendant declined to do this, declared he would pay nothing; and as he was in the condition that one witness terms “fighting drunk,” became excited over the matter, called defendant a son of a N-and other vile names; struck and tried to choke him, and when defendant ordered him out of the store, said “I will leave when I get ready,” and struck at defendant with his dinner pail, knocking his glasses off, when defendant, greatly excited by Faulk’s insults and blows, in the endeavor to enforce his order struck Faulk with his fist alone, and pushed him at the same time, and Eaulk with his face towards defendant and his back to the front door close' to which he was, fell backwards on to the asphalt sidewalk, and received such a wound on the protuberance or occipital bone as resulted in a fracture of that part of the skull and his death in a few moments. Just at Ae outside of the front door wa3 a lawn mower, chain, and a grubbing hoe and pick; the two last named without handles were lying on the sidewalk. Faulk’s feet, as he backed out of the door became entangled and he fell over the lawn mower, breaking a portion of it off. The foregoing facts are testified to by Root who was present
Two physicians, the coroner and his deputy stated the blow was given by some blunt instrument, and that it could not be done by a simple fall on an asphalt pavement. The question was not asked any witness, lay or professional, whether the fracture could not have been caused by Eaulk’s falling on the pick as it lay on the sidewalk.
In this case we are foreclosed, and with a strict foreclosure,'from passing on the action of the trial court in relation to impanelling jurors; and as to giving time to defendant’s counsel to consult together before introducing evidence on behalf of their client, since none of these matters were excepted to at the time of their occurrence, and such exceptions set forth in the motion for a new trial and preserved in the bill of exceptions; and the fact that affidavits were made and incorporated in the bill of exceptions in order to preserve the matters aforesaid, does not have any such preservative effect, as has been so often decided by this court. When the lawyers of this State will learn this simple rule of procedure is unknown. A few cases on the subject may not be unimpertinent: [State v. Hayes, 81 Mo. 574" court="Mo." date_filed="1884-04-15" href="https://app.midpage.ai/document/state-v-hayes-8007864?utm_source=webapp" opinion_id="8007864">81 Mo. 574; State v. Musick, 101 Mo. loc. cit. 273; State v. Brewer, 109 Mo. loc. cit. 652; State v. Blunt, 110 Mo. loc. cit. 340; State v. Howard, 118 Mo. loc. cit. 145 et seq.; City of Tarkio v. Cook, 120 Mo. loc. cit. 11.]
But exceptions were -saved by defendant to the giving
Par. 7. “If you find from the evidence that the deceased went to the defendant’s place of business and that there a dispute arose between them in which the deceased assaulted the defendant or used opprobrious epithets or threats toward him, then the defendant had the right to order and eject the deceased from said premises by whatever force or means as were reasonably necessary, short of taking his life or doing him some serious bodily harm, and if the defendant in lawfully ejecting him from said store-house or place of business killed him without the use of any deadly weapon and without faking .any undue advantage of him and without using any cruel and unusual manner towards him, then you must find the defendant not guilty.”
“8. If you find that the defendant by accident in a heat of passion upon sudden or sufficient provocation or upon sudden combat without taking any undue advantage and without using any dangerous weapon and not in a cruel and unusual manner killed John Eaulk you will acquit him [but insulting or offensive language or a blow not made with a dangerous or, deadly weapon would not be a sufficient provocation to warrant the defendant in taking the deceased’s life.]”
“15. If you find from the evidence that at the county of Jackson and State of Missouri at any time within three years before the seventeenth day of October, 1898, the defendant without intending to produce death wrongfully killed John Eaulk by means neither cruel or unusual in a heat of passion you will find him guilty of manslaughter in the fourth degree and assess his punishment at imprisonment in the penitentiary for not more than two years, or at imprisonment in the county jail not less than six months, or by a fine of not
There were also instructions given on the same side, as to murder in each degree. These quotations and statements are sufficient to show the theory on which the State tried the cause.
On behalf of defendant the following instructions were asked and refused:
“1. The jury are instructed that in law every man has charge of his own house as well as his own shop, store or place of business and has the further right to reasonably regulate and control the same against ¡all other persons whomsoever. If, therefore, the jury shall believe and find from the evidence that a dispute or difficulty arose between the defendant and the deceased at the time mentioned in the indictment, in the store-room or place of business of the defendant, in which the deceased assaulted the defendant or used insulting or opprobrious epithets or threats toward the defendant, then the defendant had the right to order and eject the deceased from said premises, by whatever force or means were reasonably necessary, short of taking his life or doing him some serious bodily harm; and if the jury further believe under the evidence in this case that the defendant in lawfully ejecting the deceased from defendant’s store-house or place of business, killed the deceased without the use of any deadly or dangerous weapon and without taking undue advantage -of him and without using any unusual manner towards him, then your verdict should be that the defendant is not guilty.”
“2. The jury are instructed that if they shall find and believe from the evidence that at the time and place charged in the indictment the defendant assaulted and killed the deceased John Eaulk in a heat of passion upon a sudden provocation, or upon a sudden combat, without any undue advantage being taken of said Eaulk and without using any dan
“3. Under the law governing this case, if the jury shall find and believe from the evidence that the deceased, John Faulk, came to his death in any manner, or by any means other than by the direct force and violence of the defendant to said Faulk, then they should not find the defendant guilty of murder in either the first or second decree.”
As to the alleged modifications of defendant’s instructions 1 and 2 by giving instructions 1 and 8 for the State, it suffices to say there was no exception saved to such modificatory act, did it occur, and that affidavits can not preserve the memory of such occurrences.
Defendant’s refused instructions, already copied, though faulty, may however be used as bases upon which to build such instructions as may be free from fault. The right to have correct instructions given when incorrect ames are asked by the defense, was the settled law of this court for many years, never mooted, doubted or denied until State v. McNamara came up here, 100 Mo. 100" court="Mo." date_filed="1889-10-15" href="https://app.midpage.ai/document/state-v-mcnamara-8009742?utm_source=webapp" opinion_id="8009742">100 Mo. 100, now expressly and happily overruled in State v. Clark, 147 Mo. loc. cit. 38.
The second instruction refused defendant, is objectionable in that it does not define the meaning of the expression, “in the heat of passion,” nor “upon a sudden provocation,” nor do the State’s instructions, though employing these and similar expressions, give them definition. Such failure in instructions to explain the meaning of such expressions, has uniformly been held erroneous. [State v. Strong, 153 Mo. 445" court="Mo." date_filed="1900-01-23" href="https://app.midpage.ai/document/state-v-young-8013411?utm_source=webapp" opinion_id="8013411">153 Mo. 445, and cases cited.]
There is no doubt that an owner of a store-house or premises may order another, whether a trespasser or. intruder
The same considerations which apply to a dwelling house apply with equal appropriateness to a lawyer’s office, and to the store, or shop of a tradesman. In Hinchcliffe’s case, 1 Lewin C. C. 161, the building in question was a barn, and upon an indictment for manslaughter, it appeared that the deceased and his servant insisted on placing corn in the prisoner’s barn, which she refused to allow. They exerted force, and a scuffle ensued in which the prisoner received a blow in the breast, whereupon she threw a stone at the deceased and he fell down and was taken up dead. Holrotd, J., said: “This case fails on two accounts. It is not proved that the death was caused by the blow, and if it had been, it appears that the deceased received it in an attempt to invade her barn against her will. She had a right to defend her bam, and to employ such force as was reasonably necessary for that purpose, and she is not answerable for any unfortunate accident that may have happened in so doing.” And under his lordship’s direction the prisoner was acquitted.
In none of the instructions asked by defendant does the thought or theory appear as to the effect to be given to the conduct of defendant if he actually used the pick in striking the fatal blow, provided he did so in hot blood, produced by the
Even an intentional killing done with a deadly weapon in hot blood and without malice, is only manslaughter. [State v. Hill, 4 Dev. & B. (N. C.), 491; State v. McDonnell, 32 Vt. loc. cit. 541 and it is but manslaughter at common law, 1 East P. C. 233, 234, 235; 4 Bl. Com., 191; 2 Bishop New Crim. Law, secs. 695, 697, 699, 701.]
The principle just announced in relation to manslaughter is entirely distinct from that relating to homicide by misadventure or through accident or misfortune, as well as excusable or justifiable homicide; and. while it is true “a blow not made with a dangerous or deadly weapon would not be a sufficient provocation to warrant the defendant in taking the deceased’s life,” yet it is equally time that such weaponless blow if it caused hot blood, might reduce what otherwise would be murder to mere manslaughter, although in response to such blow defendant seized and used on his adversary a deadly weapon.
Recurring to the question of provocation, every owner or occupier of a building is entitled to at least civil treatment from those who come therein not having the legal right to be or to remain there; and if any such person fail to behave towards the owner in a becoming manner, the latter may, after an order or request to depart, lawfully eject such person from such building, not using any excess of force, or such as to cause the death of such person, who would become a trespasser ab initio after refusing to leave upon order or request so to do.
Our statute declares that homicide shall be deemed excusable when committed by accident or misfortune in either of the following cases: “Or, second, in heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel and unusual manner.” [Section 3463, Revised Statutes 1889, now section 1819 of the Revision of 1899.]
It is asserted by counsel for the State that instruction number 8 of the instructions given for the State, supplies any lack caused by the refusal of defendant’s instruction number 2. Each of those instructions evidently intended to follow the section of the statute already quoted, but number 2 comes closer to the statute than does number 8, for the latter is objectionable because of adding near its. close these words which have been placed in brackets: “But insulting or offensive language or a blow not made with a dangerous or deadly weapon would not be a sufficient provocation to warrant the defendant in taking the deceased’s life.” These added words are plainly incongruous with the rest of that instruction, and
Passing now to the consideration of defendant’s 3d refused instruction, it is proper to say that though incorrect and therefore properly refused, it contains in a nebulous vague kind of way as though seen “through a glass darkly,” a germ of truth.
The indictment charges the homicide to have been done by the direct blow of a pick, and some of the evidence supports this charge; but, on the other hand, the evidence of three witnesses, two of them entirely disinterested and all of them unimpeached, shows that death resulted from a fall on the asphalt pavement, and this fall from a blow of defendant’s fist. It is quite obvious that if the testimony of the three witnesses just mentioned be true, then the charge in the indictment is not supported. This view of the case finds illus
Under these authorities, if the testimony of the three witnesses already mentioned be true there was a fatal variance between the charge in the indictment and that testimony,
The charge in the indictment was of a direct blow with a pick which effected the death of Eaulk, while the testimony of the three witnesses for the defense showed death to have indirectly resulted from a blow of the fist and a fall on the pavement. And the fact that there was testimony of a contrary effect did not oust nor toll the right of defendant to have a proper instruction based on testimony which contradicted the charge made in the indictment.
Eor the errors aforesaid, the judgment is reversed and the cause remanded.