269 Mo. 177 | Mo. | 1916
Defendant was tried in the circuit court of Douglas County upon an' information charging murder in the first degree, for that, as it was averred, he had shot and hilled one Samuel O. Narramore. Having been found guilty by the jury of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years, he has, after the usual motions, appealed. ■
Such of the facts as may tend to make clear the points- which we will find necessary to consider in our opinion, run briefly thus:
On the 4th of July, 1914, there was a picnic at" a place in Douglas County known as Johns Mills. To this picnic came, among others, defendant, halting a moment on his journey thither, at a place called Abadale, where he purchased some cartridges for his revolver. Shortly after defendant arrived on the picnic ground, upon some provocation not disclosed (and not pertinent to this case if disclosed), defendant, got into a quarrel with a young woman, who seems to have either slapped defendant or struck him with an umbrella. Defendant in return for her blow, eithei slapped her or pushed her from him. This altercation with the young woman seems to have occurred some three hours before the time at which deceased was. killed. At a time shortly after the altercation with the young woman, deceased met , defendant and after some words, seemingly growing out of defendant’s altercation with the young woman (though the
Subsequent to this and apparently shortly after the noon hour, defendant and deceased met at the picnic grounds and the shooting occurred. The testimony is conflicting as to whether defendant on this occasion first accosted deceased, or deceased accosted the defendant. The testimony for the State leaves this matter in doubt; while the testimony for the defendant is that deceased came to defendant on the picnic grounds and inquired of him whether he meant what he had said to deceased in the previous encounter, above mentioned. Being advised by defendant that the latter did mean it, deceased, applying the conventional opprobrious epithet to defendant, struck at him with a "pair of knucks, and instantly defendant drew his pistol and shot deceased.
Upon this phase of the case, and as to what happened at a time instantly before the shooting, the testimony of the State tends to show that defendant applied an opprobrious epithet to deceased and the latter replied, “I will be damned if I will take it,” and either struck defendant upon the head, or struck at him without hitting him, and defendant instantly shot deceased. The witnesses for the State say that the shooting by- defendant and the striking of, or at, de
The defense is self-defense. Upon this phase there was some evidence -to the effect that deceased, before he was shot by defendant, had, as stated above, armed himself with a pair of metal knucks, and that he struck defendant therewith, wounding him on the head and drawing blood, before defendant fired the fatal shot Much conflict is to be found in the evidence touching whether the wound upon the defendant’s head and the blood which flowed therefrom were caused by a blow from deceased, or were caused by an attack made on defendant by the mother of deceased with an umbrella shortly after the shooting.
Much testimony came in as to the metal knucks. It was shown, without contradiction, that these knucks must have been gotten by deceased from the coat pocket of the witness Hide, and that they were found after the death of the deceased in the pocket of certain trousers which had belonged to the latter. That deceased either struck, or struck at defendant with a pair of knucks, or with his fist just before, or simultaneous with, the shooting by defendant, is abundantly shown by the evidence. The sole conflict lies in the questions of (a) whether deceased used a pair of knucks in his striking; (b) whether he actually hit defendant, or not; and (c) whether at the time he struck defendant, or struck at the latter, defendant was not already engaged in drawing his pistol. In other words, the questions which are troublesome and which were before the jury, are whether deceased acted, in doing what he did, to protect himself from a threatened assault by defendant with a pistol, or whether defendant, in doing what he did, acted to protect himself from a threatened assault by deceased with metal knucks. There is evidence on both sides of these questions.
I. It is urged that the information herein is bad, for that the learned prosecuting attorney, seemingly by a mere clerical misprision, thrice out of the four times in which the term is found in the information, wrote that the assault, shooting and striking were done of defendant’s “malice of aforethought,” instead of using the formal and time-tried expression “malice aforethought.” While we are of the opinion that the unnecessary interpolation of the preposition “of” was mere non-hurtful surplusage (State v. Meyers, 99 Mo. 107), yet, since this case must on other grounds be reversed and remanded, the learned prosecuting attorney may (if he is so advised) amend the information by striking out the surplus preposition, lest the attempted innovation should ■ clutter up the law by becoming a precedent, and so invite carelessness.
A reference to the adjudged cases and a brief looking to the logic of the matter will conclusively show that this complaint is more specious than real.. While
In the light of our former rulings and of the reason of the thing, we are of opinion that where a homicide is actually accomplished by the intentional use of a deadly weapon upon a vital spot, defendant ought not to be heard to bottom reversible error upon the employment by the trial court of a direct expression of the result of the use of such weapon rather than of’ its periphrastical equivalent. A little fairer indeed, would it be to follow the form of the self-defense instruction set out in the case of State v. Thomas, 78 Mo. l. c. 339, which we commend to the courts nisi.
V. Upon the trial, against defendant’s exceptions, the court instructed the jury thus:
Presumption. “If you find from the evidence that defendant intentionally killed Samuel 0. Narramore by shooting him with a loaded pistol and that such pistol was a deadly weapon, then the law presumes that such killing was murder m the second degree, in the absence of proof to the contrary; and it devolves upon the defendant to adduce evidence to meet or repel that presumption, unless it is met or repelled by evidence introduced by the State.”
While the presumption of law mentioned in the above instruction exists (State v. Tabor, 95 Mo. l. c. 595), and in a proper case may, it is said, be invoked to eke out proof otherwise dark and lacking, this is not a proper case in which to fall back upon such a presumption. For it is a well-settled principle of law that presumptions are invoked only when evidence is lacking.
It may be that cases are to be found in which this instruction has been given, and wherein there was proof pro and con of facts from which the triers of fact could have found whether the homicide was murder in one or the other degree, or manslaughter of one degree or another, or whether it was done in self-defense. But it is clear to us that in all such cases a presumption is used in the face of proof of the fact presumed, to batter down the evidence in the case. This is not permissible and constitutes an unwarranted use of presumptions; because, as forecast, there is no room or necessity for a presumption when there is
When however, an intentional killing with a deadly weapon is shown, and there is no evidence upon the side of the State of any other fact, it has been said that this presumption arises to aid the State. [State v. Minor, 193 Mo. l. c. 612; State v. Evans, 124 Mo. 397.] The Minor case was decided by this court, In Bane, in 1905, and all of the judges concurred, except Marshall, . J., not sitting. The homicide there was committed by means of shooting with a pistol. There were no eye-witnesses. Immediately after the shooting the accused fled; Being apprehended and put upon his deliverance, he admitted the shooting, hut averred that it was accidental and not intentional. Against the defendant’s averment of accident, the State lacking affirmative evidence, relied upon a presumption, and so relying the below instruction was given by the court nisi and it would have been held good by us upon the facts therein held in judgment if the word “intentionally” had been used therein:
“ ‘If the jury believe and find from the evidence in the case that the defendant shot with a pistol, and by such shooting killed William Green, the law presumes that such killing was murder in the second degree, in the absence of proof to the contrary, and in such case the burden of proof devolves upon the defendant to show to the reasonable satisfaction of the jury, from the evidence.in the case, that he is guilty of a less crime than murder in the second degree, or that the homicide was excusable.’ ”
The only criticism of the above instruction in the case, supra, is this, to-wit: “Under the evidence in this case the court was justified in submitting that question to the jury and if the instruction numbered 5 had contained the word ‘intentionally’ or its equivalent before the words ‘shot with a pistol,’ it would
Passing by the illogical reasoning arising from the necessity of inferring in the Minor case an intentional killing from the fact of flight and then basing a presumption of law largely upon such inferred fact, we may concede for argument’s sake (without, again so holding), the correctness of the ruling therein. But the true facts therein were evidenced on the State’s side solely by the dumb evidence of the circumstances, contradicted by the testimony of the defendant Minor only upon the single point of whether the killing was intentional or accidental.
The facts in the instant case are wholly different. All of the circumstances of the homicide here are known, and shown upon the record by the testimony of eye-witnesses. No earthly reason or necessity exists for indulging any presumption as to whether the killing was or was not murder in the second degree. The facts shown in evidence disclosed the grade of the offense. That these facts were disputed as to some vital • phases by the witnesses for the State and for the defendant, does not detract from the argument. It was for the jury as the triers of fact to resolve these contradictions and when they resolved them they held inevitably that upon one side lay truth and upon the other falsehood; i. e. (not to put it so brutally), that the facts shown by the State are the veritable facts of the ease. The actual facts being shown, or being by the finding of the jury made veritable, there is no place in this case for a presumption of law about the grade of the homicide. [2 Chamberlayne, Mod. Law of Ev., 1085; Erhart v. Dietrich, 118 Mo. l. c. 427; Conway v. Supreme Council, 137 Cal. l. c. 389; Mockowik v. Railroad, supra.] There is, we repeat, no. doubt of the existence in law of the presumption de- ' fined in the instruction under review; but such an instruction has no place in a case wherein the facts are known from eye-witnesses. Surely, it has no place
We are not required to overrule the case of State v. Minor, supra, but content ourselves with distinguishing it upon the facts. We leave to subsequent determination, when we shall meet the point face to face, the question whether the procedural necessity of indulging the presumption on the State’s part in order to make any ease at all, should override what casually seems to be a plain case of bottoming a presumption upon an inference (said by many respectable courts and law-writers to be synonymous with presumption). But be all this as may be, for the reasons stated the effect here of giving the instruction was to put upon defendant an undue burden; in effect, to beg the identical questions submitted to the jury upon the proven facts, and so compel defendant to meet by his proof both the State’s proven .facts and the weight of an unwarranted presumption drawn from these facts. In the light of some of the holdings of ours, it is not strange that the learned trial court fell into error. We are constrained by the reason of the thing to say that upon the facts in this case the instruction ought not to have been given.
Other alleged errors will not likely occur upon a new trial. It follows that for the errors noted, this case should be reversed and remanded for a new trial. Let this be done.