delivered the opinion of the court.
Thе defendant was indicted in the Circuit Court of Dunklin county for the murder of one Charles A.- Moore. The indictment was in the usual form for murder in the first degree, and a change of venue having been awarded to Cape Girardeau county, a trial was there had, and he was convicted of manslaughter in the first degree.
The exclusion of evidence offered by the defendant, the giving and refusing of instructiоns and the finding of the jury are the matters complained of.
The evidence shows that Moore, the deceased, entertained the greatest ill-feeling toward the defendant, whom he accused of slandering him; that he had made threats on various occasions that he would kill him; that he commenced to make these threats some weeks before, and continued to makе them to within less than an hour of being shot, when he stated, while belting on his pistol and going in the direction of the defendant, that he ‘ ‘ was going to kill George Sloan.” At the time of the killing the defendant had just come to town, and Moore immediately sought him out, and got into an altercation with him; the defendant started to leave, and Moore followed him with his revolver buckled on his person; defendant then turnеd round, saying to Moore, “ don’t follow me,” and immediately fired the shot from the effects of which Moore died in a few days thereafter.
The. court rejected all the evidence of threats made by the deceased more than three days previous to the shooting as being too stale and remote, and also refused to admit in evidence those threats which had been made just prior to the killing, and which had not at that time been communicated to the defendant. What
In The State v. Jackson,
In the case of The State v. Hays,
Of the propriety and justice of the decision upon the facts as developed in that case, there can be no doubt. At what time the threats were made did not appear, and the murdered manwas not trying to execute his threats, or commit any offense, when the prisoner met and killed him. A threat antecedently made would of course furnish no justification or palliation for a homicide under such circumstances. The books contain examples in which the threats of the deceased party have been given in evidence, and there are also cases in which such threats have been rejected. But where such threats have been received they were generally recent, or continued down, so as to become very nearly coeval with the killing, and were brought home to the knowledge of the party slaying. (See Levin’s C. C. 184; Rose. Crim. Ev. 772; Rector’s case,
The facts in the case from Georgia are almost identical with the case we are now considering. The deceased, Moore, at a party, had sought a personal difficulty with Sloan, which Sloan shunned. Two or three days before the shooting, and again on the day before, he threatened to kill Sloan - the “first time he saw himthat on the occasion last referred to he stated that he ‘ ‘ intended to kill him the first time he saw him, as he was nobody but a God-damned Yankee, and should not associate with white folks,” and this was communicated to Sloan before the affray. It appears also that when the defendant was in the store Mоore came to the door with a revolver, looked in, and requested the proprietor to shut up his store, as he “ expected that he and Sloan would have a difficulty, and he did not wish to have it in his house.” This remark of Moore the court excluded because it was not communicated to the defendant. In an analogous case in the State of Illinois this same question arоse, and the court there held that the evidence was admissible. The court remarks: “Upon the trial the
In the present case the evidencе was highly important and proper to illustrate and explain the character of the act. The threats were continuous and frequent, they were all blended and inseparable; and the last threat, when the deceased had his revolver with him, showing an ability to carry out and accomplish his purpose, went to form a part of the res gestae, and must be ■considered as of thе same transaction. They were therefore all admissible in evidence together, not to justify or exculpate the slaying, if it should be found that the defendant was the assailant, but as circumstances to explain the act, and show whether the defendant acted in necessary self-defense.
Defendant proposed to prove that whilst the surgeons were dressing the wound, and immediаtely after the shooting took place, Moore, in speaking about the matter, said that “Sloan was not in fault, that he had drawn on the difficulty by attacking him, and that if his pistol had not hung when he went to draw
In McMillen v. The State,
The ruling in that case is decisive of this, and there is no necessity for repeating the reasons for the conclusion we there arrived at. The evidence was admissible, and the court erred in rejecting it.
We will not enter upon an examination of thе instructions in detail, but only refer to one or two given for the prosecution. The tenth instruction given for the State, in reference to the law of self-defense, is objected to and complained of by the defendant. The instruction, though unhappily and inartistically drawn, is substantially comet. It is in accordance with the doctrine laid down by the best elementary writers, and has been constаntly acted upon and enforced by the courts.
On the trial of Thomas O. Selfridge, Judge Parker, afterward Chief Justice of Massachusetts, puts this case as an illustration: “ A., in the peaceable pursuit of affairs, sees B. walking rapidly toward him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A., who has a club in his hand, strikes B. over the head before or at the instant the pistol is discharged, and of the wound B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was only to terrify A.” Upon this case the judge inquires, “ will any reasonable man say that A. is mоre criminal than he would have been if there had been a bullet in the pistol? Those who hold such a doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol was loaded — a doctrine which would entirely take away the right of self-defense; and when it is considered that the jury who try the cause, and not the party killing, are tо judge of the reasonable ground of his apprehension, no danger can be supposed to flow from this principle.” „Tke judge had before instructed the jury that “when, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or commit any felony upon his person, the killing of the assailant will be excusable homicide, although it should
Our statute has placed killing in self-defense under the head of justifiable homicide, and hence the common-law rule applies in the fullest extent. The law as announced by Judge Parker is of ancient origin. The principle was recognized and acted upon in Levett’s case, recited by Jones, J., in Cook’s case (Cio. Car. 538), to the following effect: Levett was in bed with his wife and asleep, in the night, when the servant ran to them in fear, and told them that thieves were breaking open the house. He arose suddenly, and, taking a drаwn rapier in his hand, went down and was searching the entry for the thieves, when his wife, espying some one whom she knew not in the buttery, cried out to her husband in great fear, “Here they be that would undo us.” Levett thereupon hastily entered the buttery in the dark, not knowing who was there, and, thrusting with his rapier before him, killed Francis Freeman, who was lawfully in the house and wholly without fault. On these facts, found by special verdiсt, the court held that it was not even a case of manslaughter, and the defendant was wholly acquitted. Now here the defendant acted upon information and appearances which were wholly false; and yet, as he had reasonable ground for believing them true, he wras held guiltless.
Roseoe, in his work on Criminal Evidence, says'it is not essential that an actual felony should be about to be committed in order to justify the killing. If the circumstances are such as that, after all reasonable caution, the party suspects that the felony is about to be immediately committed, he will be justified. (Roscoe’s Crim. Ev. 639.) The books give numerous examples, and apply the principle approvingly. (1 Hale, P. C., 42, 474; Hawk., P. C., Curwood’s ed., 84; 1 East, P. C., 575; 1 Russell on Crimes, 549-50.)
The eleventh instruction given for the prosecution stated that when a party was indicted for murder he might be convicted of manslaughter, and if the jury believed from the evidence that
If the killing constituted an offense, it was either murder in the first degree or some of the lesser grades of homicide; but certainly it could not be brought under the definition of the first degree оf manslaughter. There was not a scintilla of evidence going to show that that offense,>vas committed.
Manslaughter in the first degree,-under the statute, is “the killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another while such other is engaged in the perpetration or the attempt to perpetrate any crime or misdemeanor not amounting to a felony, in cases where such killing would be murder at the common law'.” (1 Wa-gn. Stat. 446, § 7.)
It wTould seem to be plain, from the reading of this statute, that in order to convict the accused of manslaughter in the first-degree he must be engaged in committing some other offense besides violence upon the person killed. Upon a statute defining manslaughter precisely as ours, thе question came up for determination in the Supreme Court of the State of New York. The prisoner was indicted for killing his wife. At the trial the court charged the jury that if they were satisfied from the evidence that the deceased had come to her death by reason of blows or injuries inflicted upon her by the defendant, not in any self-defense, or otherwise excusably or justifiably, they should find the defendant guilty of manslaughter in the first degree. The charge was held to be erroneous, and the conviction was reversed. In the appellate court the judge said: “If the prisoner killed his wife by violent means (and he must have done so, if at all) no doubt he was engaged in the perpetration of an assault and battery, which is a misdemeanor. But that wras part of the act itself which con
Upon an indictment for murder in the first degree the accused may be convicted of any lesser grade of homicide, but the conviction must be based on some degree which the evidence shows he is guilty of.
It follows, therefore, that the judgment must be reversed and the cause remanded for a new trial.