THE STATE v. WILLIAM L. ROBERTS, Appellant
SUPREME COURT OF MISSOURI
June 8, 1922
284 Mo. 284
Division Two
PER CURIAM: - The foregoing opinion by REEVES, C., is adopted as the opinion of the court. All of the judges concur.
THE STATE v. WILLIAM L. ROBERTS, Appellant.
Division Two, June 8, 1922.
- MURDER: Sufficient Evidence: Cooling Time: Self-Defense. Defendant‘s turkeys had been trespassing upon deceased‘s premises and eating his corn at a pen where he was feeding about a hundred hogs. Deceased asked defendant‘s boys to tell their father to keep the turkeys off of his premises until he removed the hogs. Soon afterwards defendant went to the pen where deceased was unloading corn, and hot words ensued, and deceased threw a neck-yoke over the wire fence at defendant, which fell eight or ten steps behind him. Defendant then went rapidly towards his house, saying, “I will be back in a few minutes.” The house was forty rods away, and defendant loaded his shotgun, returned with it to the pen, and before deceased advanced a step addressed him in language which was equivalent to a challenge to mortal combat. Deceased, still inside the fence, picked up an ax, went to the fence, put one hand on a post and one foot on a wire, as if to get over the fence, when defendant, standing twenty-five feet away, fired both barrels of the shotgun in quick succession, killing deceased. Defendant testified that he knew deceased was armed, and that he went back with the gun with the intention of using it if he had to. Held, that when defendant went to his house he was out of danger and there was ample cooling time, and the jury were justified in finding that he returned to the pen for the purpose of renewing the quarrel and with the intention of taking deceased‘s life. Held, also, that there was no room in the case for an instruction on self-defense.
- _____: Self-Defense: Imperfect Right: Felonious Intent. The instructions given in this case correctly declared the law of self-
defense and of the imperfect right of self-defense; but defendant‘s own testimony shows that, after he had returned to his house, forty rods from the scene of the first quarrel and was entirely out of danger, he returned with the felonious purpose of renewing the quarrel, and therefore no instruction on self-defense should have been given. - _____: _____: Trespasser: Retreat. Where defendant, after the first quarrel, went to his house, forty rods away, loaded his shotgun, returned to the scene, which was on deceased‘s premises, and was in effect ordered to leave, and there was a space of twenty-five feet and a four-foot fence between them, and no imminent danger, defendant should have withdrawn, although deceased made a hostile demonstration with an ax; and a plea of self-defense was not available. If one can avoid an assault by retreating, or if there is any other alternative, he is not justified in taking the life of his assailant.
- _____: _____: Justification: Burden. The burden is not on the State to prove that the killing was without justification. The burden is upon the defendant to prove any affirmative matter in excuse, justification or extenuation of the homicide, and to show to the reasonable satisfaction of the jury that he acted in self-defense; and instructions which place the burden on the State are too favorable to defendant.
- _____: _____: Apprehension. It is only when one has reasonable cause to apprehend immediate danger that he may act upon appearances, and the instruction on the subject given in this case was too favorable to defendant.
- _____: Instructions: Omitting Defenses. Instructions for the State covering the entire case are not erroneous because they omit a defense set up by defendant. Where the State‘s instruction omits some feature which is not an element of its cause of action, but of a defense set up, the omission may be cured by instructions for defendant submitting that feature. Besides, in this case the omitted feature was self-defense, and there was no evidence constituting a submissible case of self-defense.
- _____: Turbulent Character of Deceased: Specific Instances of Lawlessness. It is not error to refuse to permit defendant to testify to specific acts of violence on the part of deceased towards others known to defendant prior to the homicide, or to conversations with deceased in which deceased told of troubles he had had with others. Such testimony is not admissible to prove deceased was a lawless, turbulent or dangerous man; his violent or turbulent character can be proven only by witnesses who knew his general reputation in the neighborhood in which he lived.
ARRAIGNMENT: Waiver. An announcement by defendant of ready and going to trial is equivalent to a plea of not guilty, and is a waiver of formal arraignment.
Appeal from Callaway Circuit Court. - Hon. E. S. Gantt, Judge.
AFFIRMED.
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
(1) There is substantial evidence of defendant‘s guilt. (2) The weight of the evidence is for the jury, and this court will not disturb same. State v. Yondell, 201 Mo. 662; State v. Espenschied, 212 Mo. 223; State v. Arnett, 210 S. W. 83. (3) To properly bring alleged erroneous admission or exclusion of the evidence before this court, the particular testimony complained of should be indicated in the motion for a new trial. State v. Holden, 203 Mo. 584; State v. Brown, 168 Mo. 474; State v. Whitsett, 232 Mo. 529. (4) The instructions given by the court fully and correctly declared the law applicable to the evidence in this cause. (5) The instructions refused by the court were properly refused as the given instructions fully and completely covered the case. (6) Instructions given must be taken and read together as a whole. State v. Sykes, 191 Mo. 83; State v. Brown, 188 Mo. 465; State v. Deitz, 235 Mo. 341. (7) The defendant was present in person and by counsel when the case was called for trial and, by counsel, announced ready for trial. The trial thereupon proceeded without objection by counsel for defendant for failure of record to show arraignment and plea, and the same was participated in by defendant. The defendant was found guilty by the jury of murder in the second degree, which is a felony less than capital. This action of the defendant constituted a waiver of both arraignment and entry of a plea of not guilty and is not reversible error. State v. O‘Kelly & Fitch, 258 Mo. 372; State v. Loesch, 180 S. W. 879; State v. Hascall, 226 S. W. 21; State v. Allen, 267 Mo. 55; State v. Gould, 261 Mo. 703; State v. Jennings, 213 S. W. 423.
HIGBEE, P. J. - On September 17, 1917, the Prosecuting Attorney of Boone County filed an information charging the defendant with murder in the first degree for having shot and killed William A. Ryland on July 30, 1917. There was a trial and conviction which was reversed on appeal, and the cause remanded for a new trial. [State v. Roberts, 280 Mo. 669.] On November 15, 1920, the cause again went to trial before a jury, resulting in a verdict of guilty of murder in the second degree, and assessing the punishment at imprisonment in the penitentiary for a term of twenty-five years.
The only living eye-witnesses of the homicide are the appellant and one Charles Palmer, an elderly colored man, employed by the deceased as a farm hand. Roberts and Ryland, the deceased, owned and lived on adjoining farms, situated about three miles southwest of Sturgeon, in Boone County. On the morning of the unfortunate tragedy, Ryland and Palmer were unloading some corn from a wagon into a box at a pond on Ryland‘s farm. The pond was inclosed with hog-wire fence four feet high. Palmer was in the wagon, while Ryland was in the inclosure. They noticed Roberts’ turkeys a short distance from the pond, and saw two of the defendant‘s sons apparently looking for them. Palmer testified, in substance:
Ryland told me to go and tell them to tell their father to keep the turkeys out until he got his hogs out. (Ryland was then feeding about a hundred hogs). I told the boys, “Mr. Ryland says for you to tell your Pa to try to keep the turkeys out till he can get the hogs out of here.” I helped drive the turkeys to their premises. Soon after that Ryland saw Roberts coming from his house, which was about forty rods from the pond. After
Reuben Barnes, the undertaker, testified that he found 115 shot wounds distributed over the front part of Ryland‘s body. There were four or five in the left leg above the knee, all running upward; three in the right hand which ranged upward. There were three or four wounds over the heart. Five or six shot had penetrated the arteries, out of which the embalming fluid ran when he put pressure on to force the fluid into the body. It was shown by Mrs. Ryland and others that Ryland and Roberts had always been on friendly terms.
The defendant had known deceased for twenty-five or thirty years, and had lived in the community with him for eight or ten years, and knew that deceased had a bad reputation for being a quarrelsome, turbulent, and dangerous man.
On cross-examination, the defendant testified that in the conversation with Ryland they both got mad; that Ryland threw the neck-yoke at him and that made him mad. “I started home mad-I went home and got my gun and went back down there, and I wanted to settle the trouble while it was new and before it got any older, without any further trouble if I could. We had always got along and I knew his disposition, and I thought it was better to settle it while it was new than to wait until
It was shown by ten or twelve witnesses that the reputation of defendant in the community for being a peaceable, quiet, law-abiding citizen was good, and that the reputation of deceased as a quarrelsome, turbulent and dangerous man was bad.
Willard Goldsberry worked eight or nine years for the deceased on his farm; the last work he did was six or eight months before Ryland‘s death. Charles Kentzer worked for him eight or ten years; Andrew Kentzer for three or four years off and on; Virgil Goldsberry for about thirteen years. Neither of these ever saw or knew of Ryland carrying a pistol. Ryland did not have a weapon on his body at the time of his death.
The court gave eleven instructions for the State. The defendant objected to the first, fourth, fifth, sixth, eighth, ninth, tenth and eleventh.
The first relates to the weight and credibility of the testimony; it is in the usual form and is unobjectionable. The second is that the defendant is presumed to be innocent; that this presumption attends him throughout the trial and entitles him to acquittal unless the evidence as a whole satisfies the jury of his guilt beyond a reasonable doubt. The third is that such reasonable doubt, to authorize an acquittal, must be a substantial doubt of defendant‘s guilt, with a view of all the evidence, and not a mere possibility of his innocence. Fourth, that if the jury believe from the evidence that the defendant at, etc., on or about, etc., did wilfully, deliberately, premeditatedly and of his malice aforethought, with a loaded shotgun, shoot deceased, etc., you will find him guilty of murder in the first degree.
Instructions 5, 6, 7, 8 and 9, read:
“5. The court instructs the jury that he who wilfully (that is, intentionally) uses upon another, in some vital part, a deadly weapon, as a loaded shotgun, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act; but, if such deadly weapon is used without just cause or provo-
“6. The court instructs the jury that if you believe from the evidence that at the County of Boone and State of Missouri, on or about the 30th day of July, 1917, the defendant did wilfully, premeditatedly, and of his malice aforethought, but without deliberation, shoot William Ryland with a loaded shotgun, inflicting upon him a mortal wound, from which said mortal wound the said William Ryland then and there at the County of Boone and State of Missouri, died, then you will find him guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for a term of not less than ten years.”
Instruction 7 defines the terms “feloniously,” “wilfully,” “premeditatedly,” “deliberately,” “malice,” and “malice aforethought.”
“8. The court instructs the jury that the right of self-defense is a right not only conceded but guaranteed by law to every person. Therefore, you are instructed that if at the time defendant shot the deceased he had good reason to believe and did believe that the deceased
“9. The court instructs the jury that if you believe from the evidence that the defendant provoked the difficulty or began the quarrel, with the purpose of taking advantage of deceased and taking his life, or of doing him some great bodily harm, then there is no self-defense in the case, however imminent the peril of the defendant may have become in consequence of an attack made upon him by the deceased; and if in such circumstances the jury believe that the defendant killed the deceased, then he is guilty of murder in the first degree and you should so find in your verdict.
“But, although the jury believe from the evidence that the defendant began the quarrel or provoked the dif-
Instruction 10 relates to the consideration to be given by the jury to the good character of the defendant, if proven to their reasonable satisfaction, in passing upon the question of the guilt or innocence of the defendant.
Instruction 11 relates to the consideration to be given to the evidence tending to prove that the reputation of the deceased as a quarrelsome, violent, turbulent and dangerous man was bad. These are in the usual form and not justly subject to criticism.
The court gave four instructions for the defendant. The first is that the defendant is not required to prove his innocence or that he was justified in the killing of the deceased on the ground of self-defense, but the State is required to prove beyond a reasonable doubt that the killing was without justification or excuse.
Number 2 is that the information is simply a charge or accusation, constitutes no evidence and raises no presumption or inference of guilt; that the presumption of innocence with which the law clothes the defendant is
Number 3 is that if one has a reasonable ground to believe that another intends to do him great bodily harm and that such design will be accomplished, he need not wait until his adversary gets advantage over him, but may immediately take such steps as appear to him necessary in his own defense.
Number 4, that in resisting an apprehended assault, one need not accurately gauge the force necessary to repel the assault; while the law requires that he shall not use unnecessary force, he may use such force as appears to him necessary under all the circumstances.
The defendant has not seen fit to favor us with a brief. We have, however, carefully read the record.
I. The first complaint is that the verdict is against the evidence and the weight of the evidence, and contrary to the law under the evidence. It is not contended that the verdict is not supported by substantial evidence.
The evidence, in our opinion, warranted the jury in finding the defendant guilty. The defendant testified that after the first altercation he started home mad, saying he would be back in a few minutes. He went to his house, a distance of forty rods. He was then out of danger and there was ample cooling time. He loaded his shotgun and returned. He testified that he knew Ryland was armed; that he didn‘t propose to stand and take everything. “I went back with my gun with the intention of using it if I had to.” While Ryland was in the pond inclosure and before he advanced a step, Roberts addressed him in language that was equivalent to a challenge to mortal combat. In short, the jury was entirely justified in finding that the
II. On the first appeal, 280 Mo. 669, 681, 217 S. W. 988, after setting out the evidence on the first trial, WILLIAMS, J., said:
“We are of the opinion that appellant‘s own testimony in this case clearly shows that he was in the wrong in returning in the threatening, bluffing or menacing manner armed with a shotgun, to the scene of his recent difficulty, and from appellant‘s own testimony we think it conclusively appears that he thus intentionally provoked or brought about a renewal of the discussion or difficulty with deceased.
“If appellant did this with the felonious intention of causing deceased to renew the attack so that he (appellant) might have a pretext for killing him or doing him great bodily harm, then appellant was not entitled to invoke any phase of the right of self-defense. [State v. Partlow, 90 Mo. 608; State v. Darling, 202 Mo. 150, l. c. 172.] If, however, appellant wrongfully invoked or sought a renewal of the quarrel with the intention of merely overawing the deceased, or of holding him in check while a discussion could be had and a settlement or a mutual understanding reached as to their future status towards each other, or to accomplish any result other than the death or great bodily harm of the deceased, the appellant, while he would not be entitled to invoke the perfect right of self-defense, would, under the well established rule, we think, be entitled to invoke the right known as the imperfect right of self-defense, which would reduce the crime to manslaughter in the fourth degree. [State v. Gilmore, 95 Mo. 554; State v. Partlow, supra;
“From the State‘s evidence it would clearly appear that appellant provoked a renewal of the quarrel with felonious intent. If this were all the evidence there would be no evidence upon which to base an instruction
“Upon this and other similar testimony in the record we are of the opinion that appellant was entitled to have the court instruct on the law of the imperfect right of self-defense.
“The above instruction fails to properly instruct on this phase of the law of self-defense and was, we think, for that reason erroneous.
“We are of the opinion there is no evidence in this case which will justify an instruction on the perfect right of self-defense, and since this is true, that portion of the instruction which deals with the perfect right of self-defense is more favorable to appellant than the evidence would warrant.”
GOODE, J., concurred in this opinion. J. T. BLAIR, J., now Chief Justice, delivered a concurring opinion, holding that there was evidence justifying an instruction on the law of imperfect self-defense, but dissenting from the ruling that there was no substantial evidence tending to prove appellant acted in the exercise of perfect self-defense. WOODSON and GRAVES, JJ., concurred in this opinion. WALKER, J., delivered a dissenting opinion, in which WILLIAMSON, J., concurred, holding that the evidence did not warrant an instruction on manslaughter, and that the judgment should be affirmed.
III. We are of the opinion that the court correctly declared the law in instructions 8 and 9, if the evidence justified the giving of instructions on the law of self-defense or imperfect self-defense. [State v. Starr, 38 Mo. 270; State v. Partlow, 90 Mo. 608; State v. Hardy, 95 Mo. 455; State v. Gieseke, 209 Mo. 331 (6); State v. Sharp, 233 Mo. 269 (11); 21 Cyc. 807.] But on reading the defendant‘s cross-examination, it is clear that the defendant returned with the purpose of renewing the quarrel and the court should not have given an instruction on self-defense.
The defendant testified that he knew Ryland was armed, and then admitted he saw nothing to indicate that he was armed. “I thought it was better to settle it while it was new than to wait till we met in the middle of the road and he would jump on me.” In other words, he had no reason to believe Ryland was armed that morning, and he concluded that he had an opportunity to meet him unarmed. We think his testimony, that he had no felonious intent when he returned and renewed the previous quarrel, when all the facts are considered, is unworthy of belief, and the instructions should not have been given.
IV. There is another consideration that is fatal to defendant‘s plea of self-defense. When the defendant went to his house and loaded his shotgun, he was forty rods from the scene of the quarrel and out of danger. Concede that when he returned Ryland made a hostile demonstration with his ax. Ryland was on his own premises and, in effect, ordered the defendant off. There was a space of at least twenty-five feet and the four-foot fence between them. Roberts was not in imminent danger and should have withdrawn. If he could have avoided an assault by retreating, or if there was any other alternative, he was not justified in taking the life of his assailant.
In State v. Fraga, 199 Mo. 127, 134, BURGESS, P. J., said:
“In State v. Dettmer, 124 Mo. 426, SHERWOOD, J., in passing upon the right of the defendant to an instruction upon self-defense, held that he was not, saying, ‘The right of that nature is not to be invoked unless all other means fail; it is the dernier ressort, and in
In State v. Johnson, 76 Mo. 121, 126, we said:
“The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party himself-commenced or brought on by any wilful act of his toward his antagonist, or where he voluntarily and of his own free will enters into a difficulty. If the defendant was expecting a difficulty with the deceased, his right to defend himself did not arise until he had done everything in his power to avoid the necessity. If he could have safely avoided using the weapon he was not justifiable in taking the life of the deceased.”
In 21 Cyc. 820, the general rule is succinctly stated:
“As a general rule in order to justify or excuse a homicide as in self-defense defendant must have embraced all reasonable or probable means of escape or retreat within his power and consistent with his safety, so as to avoid the danger and avert the necessity of killing, especially where he was at fault in getting himself into the dangerous situation. Thus as a general rule a person is not justified or excused in killing one who attacks him, unless he first retreats so far as he can do so without increasing his real or apparent peril; and the fact that retreat will not place him in less peril or on better vantage ground than before does not excuse him from performing this duty.”
The defendant‘s testimony makes it clear that he was not in immediate danger and had ample opportunity to withdraw to his own premises without increasing his peril. [See
VI. It is contended that the court erred in giving instructions 4, 5 and 6 for the State, because they cover the entire case and ignore the defense set up by the defendant. There would be no merit in this contention even if the evidence made a submissible case of self-defense. The rule adopted by our Court In Banc on this question is “where the plaintiff‘s instruction omits some feature which is not an element of his cause of action, but of the defense which is set up, the omission may be cured by instructions for defendant submitting that feature.” [State ex rel. Jenkins v. Trimble, 236 S. W. 651, 653, and cases cited.]
VII. The appellant complains of the refusal of the court to permit him to testify to specific acts of violence on the part of the deceased towards others that were known to the defendant prior to the homicide, and to
The rule is thus stated in 1 Greenleaf on Evidence (16 Ed.). sec. 461b:
“One sort of evidence of character is conduct exhibiting that character. How far may the witness‘s character be exposed by introducing particular instances of conduct throwing light on that character? The important line of distinction here is between proof by outside testimony-i. e., by other witnesses-and proof by cross-examination of the witness to be impeached.
“It has long been settled that testimony from other witnesses of particular instances of misconduct is an improper mode of discrediting, because of the confusion of issues and waste of time that would thus be involved, and because of the unfair surprise to the witness, who cannot know what variety of false charges may be specified and cannot be prepared to expose their falsity. This rule excluding proof by other witnesses is well settled and everywhere accepted.”
VIII. The record fails to show a formal arraignment or plea of guilty. The defendant announced that he was ready and went to trial. This was equivalent to a plea of not guilty and was a waiver of a formal arraignment. [
The judgment is affirmed. All concur.