107 Mo. 543 | Mo. | 1891
Lead Opinion
The defendant was sentenced by the circuit court of Chariton county, in October, 1889,'to imprisonment in the. penitentiary for ten years for murder of the second degree, and the case is here on his appeal.
I. The defendant was indicted for murder of the first degree, but the state, by permission of the court, elected to prosecute and did prosecute him, for murder of the second degree alone. The defendant interposed an objection to this course, which being overruled he excepted and now assigns it for error. This contention is not maintainable. The state .had a clear right to take this course, and defendant has no right to complain that the state chose to prosecute him for a less and not the higher grade of homicide. R. S. 1889, secs. 3949, 4115; State v. Lowe, 93 Mo. 547; State v. Keeland, 90 Mo. 337; State v. Nelson, 88 Mo. 126; State v. Wagner, 78 Mo. 644; State v. Burk, 89 Mo. 635; Com. v. Dean, 109 Mass. 349; Jennings v. Com., 105 Mass. 586; Baker v. State, 12 Ohio St. 214;
The defendant having been prosecuted for an offense punishable by Imprisonment in the penitentiary for a term of not less than ten years, it follows that he was entitled to only twelve and not twenty challenges. R. S. 1889, sec. 4200. Hence there was no error in refusing to allow him twenty challenges.
II. It is claimed that the court erred in its definition of reasonable doubt. By the first instruction given at the instance of the state the court told the jury, “that the law presumes that the defendant in this case is innocent of' the offense charged, and, before you can convict him, the state must overcome that presumption, by proving him guilty beyond a reasonable doubt. If you have a reasonable doubt of the defendant’s guilt, you must acquit him; but a doubt, to authorize an acquittal, must be a substantial doubt, arising from the insufficiency of the evidence, and not a mere possibility of his innocence.” The objection to this instruction is that it limits reasonable doubt to mere insufficiency of the evidence. While we do not approve the phraseology of this instruction as the best that could be employed to define reasonable doubt, we do not see how it could have misled the jury. This objection is too hypercritical. It seems to the ordinary mind that a doubt arising from the insufficiency of the evidence is the same as a doubt arising upon a full and fair review of all the evidence in the cause. We will pause here to remark that lawyers and judges are prone to depart from the accustomed definition of reasonable doubt, and to seek a clearer statement by new definitions, but we think it will be found, on a critical, philosophical examination of the question, that the later attempts at the definition of reasonable doubt have not given it perspicuity nor added to the facility of comprehending it. In the nature of things it must be left largely to the triers of the fact. Reasonable doubt
But the court did not stop here. The defendant asked the court to give and the court did give the following instructions : “ 5. The court instructs the jury that the law presumes the defendant innocent in this case, and not guilty, as charged in the indictment; and that they should act on this presumption, and acquit the defendant, unless the state of evidence satisfies them of his guilt, beyond a reasonable doubt.
“6. The jury are instructed that a reasonable doubt of the guilt of a person on trial for a criminal offense is that state of the case, which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge — a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.”
Taking these with the one given at the instance of the state the question of reasonable doubt was presented to the jury in as clear a light as is practicable in the existing state of written language. The presentation of the question was certainly as favorable to defendant as the law- au thorizes.
The defendant shot and killed Charles P. Tidd in the telegraph office at Brunswick, Chariton county, Missouri, on the ninth day of January, 1888, at about half past seven o’clock p. m. Tidd was twenty-six years, old ; defendant, eighteen. They would have weighed about the same, Tidd being the taller, but defendant was broader across the shoulders. The depot of the Wabash railway at Brunswick had three rooms, the telegraph office being the middle one, the ladies’ waiting room being on the south and the gents’ waiting room on the north. The telegraph office’ was about fifteen by twenty feet, the long way being north and south. There was no entrance to it from the front, or end next to the railroad, but there were two doors in the northeast corner, one leading outside and the other into the gents’ waiting room. There was a bay window at the front end. which the telegraph operators occupied. To-the right of this bay window looking east, and a few feet back of it, against the south wall was a desk. Along the norfh wall just south of the door leading into the gents’ waiting room there was a stationary desk. The deceased was night operator in this office and a man by the name of Shores was day operator’. Defendant was the conductor of a freight train, running, between Brunswick and Stan berry on the Wabash railroad. Tidd’s time to go on duty was seven p. m., but on the fatal evening he was ten minutes late. Defendant was in the telegraph office a little before seven to get orders for his train, which was on the eve of starting. He had on a heavy overcoat, with fur collar, had a glove-
While he was there Tidd came in, hung up his overcoat, put his lunch basket in the locker, stepped to the stove which was near the center of the office, and said, “ Good evening, gentlemen.” About this time defendant went out to go to his train, when Shores, the day operator, «who was still on duty, called him back for further orders. He stepped back into the office, Tidd having taken a position in the meantime at the desk against the south wall near the bay window, his face being to the wall. The defendant went to the bay window, where Shores was, and just as he passed Tidd in the rear he said, “black-headed fool,” defendant still having on his overcoat, having a glove on the left hand and holding a glove and a lantern in the right. After defendant made this remark, Tidd waited a second, and then turned to him, and inquired if he meant him, to which defendant replied that he did. Tidd then inquired what he meant. Defendant told him he had reported him, and Tidd said he had not. They repeated this over two or three times, and finally defendant told Tidd he lied, as some of the state’s witnesses testified, whereupon Tidd struck at defendant, and defendant struck with his lamp, both striking about the same time. They then clinched and tustled around back of the stove into the northeast corner of the office, striking at each other. Tidd forced defendant against. the stationary desk near the door in. the northeast corner of the office, and had him partly down, when the shot was fired, the ball entering Tidd’s breastbone, passing through the main artery just above the heart, and making its exit through the right shoulder blade. Tidd straightened up, and said, “I am shot,” fell to the floor, and expired in a few moments without uttering another word. Defendant, after the shooting, had a pistol in his hand. Upon examination it was
The evidence on the part of the state does not disclose the exact position the parties occupied at the time the shot was fired, but there was evidence tending to show that they were both partly down, but the preponderance of the tvidence is that Tidd was above and leaning over him. No one saw the pistol before the shot was fired; indeed, no one present, and there were several in the office, thought there was anything serious going to happen, Shores, the operator, not even stopping his work to notice the trouble though he heard and- saw its beginning. Tidd had no weapons. Defendant went to the caboose of his train, and reported what he had done, and made no effort to escape at any time. This is substantially the case as made by the state’s witnesses, several of whom were in the office during the difficulty.
On the part of the defendant, it appeared that he was brakeman on the Wabash railroad, and he received an injury on the head in September, 1887, in crossing a bridge, which caused congestion of the brain, and laid him up for sometime. This injury made his head more susceptible to pain and injury than it would otherwise have been. Defendant claimed that McGregor, the train dispatcher, had informed him that Tidd had reported him saying simply that his' conduct would bear investigation. Defendant’s version of what occurred at the time of the homicide is in substance as follows : He said: “I came into the depot for my orders to take my train out, and about seven o’clock I started to go out of the office, and the day operator called me back, and as I came back I noticed Mr. Tidd was in the office then, and I said to him. ‘That is a nice fool trick to
He says : “When my hand touched the revolver I pulled it for the sole purpose of disabling him, so he would stop hitting me * * * After the shot he raised right up on his feet, and said, ‘I am shot,’ and fell over.”
He says he never struck at Tidd after the lantern fell out of his hand and he tried to get away. About ten days after this he had congestion of the brain, so the doctor said. On cross-examination he said he made no call for assistance, for, while there were five or six men in the office, they were not his friends, and it would iiave done no good ; he gave Tidd no warning that he was going to use his pistol nor tell him if he did not let him alone he would shoot; he called Tidd a black-headed fool, and when asked by Tidd if he repeated it, he said he did ; Tidd had not then tried to strike him, and defendant did not then think there would be any difficulty. Defendant was vexed and mad because Tidd had reported him, and he wanted to let him know what he thought of a man that would do that; as they went across the room, Tidd was striking him and he held his face close to Tidd’s breast, and tried to shove Tidd off with the left hand, and he had his arm over his head to protect it. He did not think of shooting until his hand touched the pistol, while he was down; then the thought flashed over .him to shoot to get him off, and he drew the pistol and instantly shot. Tidd had hold of him with his left hand, and was hitting him with his right, when the shot was fired. Defendant said he did not shoot while in a heat of passion, but because he thought that was the only way to get him off.
Defendant was corroborated in all essential particulars, except as to how and why he drew the pistol and
The chief contention is that the court erred in defining the right of self-defense. On this phase of the-case the court instructed the jury at the instance of the state as follows: “If the jury believe from the evidence, beyond a reasonable doubt, that the defendant,. James C. Talmage, provoked the difficulty, or began the quarrel with Chas. P. Tidd, with the purpose of taking advantage of the deceased, and of taking his life, or of doing 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 from the evidence, beyond a reasonable doubt, that the defendant, James-C. Talmage, killed the deceased, Chas. P. Tidd, then you should find the said Talmage guilty of murder in the second degree. But, although the jury may believe from the evidence, beyond a reasonable doubt, that the defendant began the quarrel, or provoked the difficulty with said Tidd, yet if they also believe from the evidence that this was done by the defendant without any felonious purpose, and that thereupon said Tidd attacked him and compelled him, in order to save his own life, to take the life of the deceased, still the law, while it will not entirely justify the homicide on the ground of self-defense, will hold the defendant guilty of no higher grade of crime than that of manslaughter in the fourth degree.”
“The court instructs the jury that the right of self-defense is a right which the law not only concedes, but guarantees, to all men. If the jury, therefore, believe
“6. Even though the jury may believe from the-evidence that Tidd made the first assault upon the defendant Talmage, and struck Talmage with his fist before Talmage struck him, yet, unless the jury further believe from all the facts and circumstances detailed in evidence in the trial of this case, that at the time the defendant fired the fatal shot he had reasonable cause-to believe, and did believe, that Tidd was about to do-him some great personal injury, and that the defendant Talmage had reasonable cause to apprehend that such, harm or such injury was about to fall, and that he-shot, at the time he did, to avert the danger that threatened him, then there is no self-defense in the-case, and you cannot acquit the defendant upon the ground of self-defense. If you believe and find from the evidence in the cause that the deceased, Tidd, first assaulted the defendant, or that the defendant entered into the difficulty with no design to use his pistol, and while under the influence of violent passion, aroused by the acts and the conduct of .said Tidd, he drew his pistol during the altercation, and shot and killed Tidd, without malice, as defined in these instructions, and that he did this under such circumstances as did not justify him upon the ground of self-defense, then you should, find the defendant guilty of manslaughter in the fourth degree.”
The following instructions were given on the same subject at the instance of defendant: “The court instructs the jury that if they believe and find from the evidence that defendant, in the manner and by the means named in the indictment, shot and killed the-deceased, Chas. P. Tidd, but shall also find and believe
“You must observe that, in order to acquit on the .ground of self-defense, it is not necessary that the •danger of death or injury to which the defendant apprehended himself exposed was real or actual, or that it was impending and about.to fall on him; it is only necessary that it should appear to you that the defend..ant so appi’ehended himself to be exposed to such danger, and that- his apprehension was reasonable, considering the circumstances of the case, as proven, .and the situation of the parties at the time, and that he .acted in good faith upon the situation as it appeared to .him, and under a real apprehension of danger to .himself. ”
And on its own motion the court instructed on the same subject as follows: “The court instructs the jury that although they may believe that the prisoner .at the time of the killing of the deceased used abusive
These instructions taken as a whole present the doctrine of self-defense as favorably to defendant as the law justifies or he could reasonably ask. Indeed, the instruction given by the court on its own motion is not the law. We cannot sanction the doctrine that a man may provoke a difficulty by abusive language, and, if the party provoked resents it by force, he may be killed with impunity. We concede that if the difficulty be provoked without a felonious design the party may not be guilty of murder, but that he would be guilty of some offense we have no doubt, no matter how fierce the passion of the insulting party or how imminent his peril may become during the difficulty. This instruction was without question erroneous, but the error was in defendant’s favor, and hence he has no right to complain.
We think there was no involuntary manslaughter in this case, and the court committed no error in failing to instruct on that grade of homicide. The defendant wilfully used a deadly wreapon upon a vital part, and he must be held to have intended the necessary and probable consequences of his own act. It is not necessary for the state to prove, in order to convict of murder ot the second degree, that the slayer had a specific intent to kill. The intent to kill in murder of that degree may
IV. The defendant contends that the evidence did not warrant his conviction of any offense, and especially of murder of the second degree. There can be but two theories deduced from the evidence with any plausibility, and these are: First. That defendant provoked the difficulty with no design to use his pistol, and that he drew it and shot, under the circumstances and with the intent as given by himself. Second. That he provoked the difficulty, with no intention of fighting a fair fight, but with the intent to use his pistol, if Tidd resented the insult and undertook to assault him. We will not stop to discuss the question whether defendant, provoked the difficulty or not.
And if he did provoke the difficulty without intending to fight on equal terms with Tidd, but provoked it with the design to use his pistol if it became necessary, then he was guilty of murder of the second degree under our statute, notwithstanding Tidd assaulted him even in as violent a manner as is claimed. A homicide committed under such circumstances is murder at common law. It is too manifest from defendant’s own testimony that defendant did provoke the difficulty to merit argument, and we will proceed at once to inquire into the motive he may have had for provoking it.
From the instructions given defining 'self defense, murder of the second degree and manslaughter of the fourth degree, the jury must have found, in order to return the verdict they did, that defendant did intend at the time he provoked the difficulty to use his pistol, if it became necessary ; for one of the instructions directed a verdict for manslaughter of the fourth degree, if the jury found that he did not at the time of provoking the
Tidd went into the office, put away his coat and lunch basket, and spoke in a friendly manner to those present. About this time defendant went out of the •office to start his train. He was called back on business. He passed behind Tidd, and said, “ Black-headed fool.” Defendant testifies that he said that to let Tidd know what he thought of a man who would report him the way he had. Common sense teaches us he intended to insult Tidd. He could have had no other object in making the remark. Tidd turned around, and asked for an explanation. Defendant replied that he meant him and gave him his reason for making the remark. Tidd denied reporting him. Defendant repeated the charge. Tidd again denied. The charge and denial were repeated two or three times. According to the state’s evidence defendant called Tidd a liar, but according to his own testimony he simply said there was a lie out, and it lay between Tidd and the train dispatcher. All the
Is it possible to believe that Talmage did not expect any difficulty under these circumstances ? He not only deliberately insulted Tidd, but after an explanation had been demanded, and Tidd had denied the charge he made two or three times, and while Tidd was standing in a threatening attitude with clenched fist, the defendant deliberately repeated the insulting epithet. Not only that, but he had according to his own story virtually called Tidd a liar, and it is scarcely in the range of probability that defendant did not anticipate an assault from Tidd upon the repetition of the insult. The defendant’s testimony must, in another aspect, be taken with some grains of allowance. He was not backward in letting Tidd know what he thought of his conduct in reporting him, but he says when Tidd called him a liar, he simply replied by saying, “All right, that may be so.” He says also that Tidd called him a snip of a conductor, and did not know how to run a train. If the report that Tidd was charged with making against defendant had so aroused him that even two or
It is argued, that defendant could not have intended to fight, for he was in no condition to fight, having on a heavy overcoat, a glove on one hand and a lantern and glove in the other. This only increases the probability that he intended from the start to use his pistol. W© find him in no plight to defend himself in the ordinary way, giving an insult and then deliberately and defiantly repeating it while his antagonist stood before him in a threatening attitude, and yet he would have us believe that he tried to get away and leave the room when Tidd assaulted him. Physically he was on equal terms with Tidd, and why he should be so firm iri making known his supposed grievances about having been reported and then after being called a snip of a conductor, and then a liar, and then assaulted, he should desire to seek safety by escaping from the office. The defendant says the lantern was knocked out of his hand by the blow he aimed at Tidd. Whether this be true or not, his right hand did become disengaged early in the fight, which enabled him to use it in getting his pistol. He retreated, holding his head close to Tidd’s breast to keep from being hurt. The evidence does not show, but the inference is, from defendant’s story, that his pistol was in his hip pocket, and it seems almost absurd to say
But there is another theory presented by the evidence and the instructions of the court, upon which the defendant could rightfully be convicted of murder of the second degree. To justify a homicide on the ground of self-defense two things must concur : First. The slayer must apprehend danger of losing his life or receiving great personal injury, and his action must be to avert this apprehended danger. Second. There must be reasonable cause for this apprehension. The defendant says Tidd assaulted him in a violent manner, and he thought he was in danger. As it turned out Tidd had no weapon, and defendant was only slightly injured. •According to some of the witnesses, the difficulty was trivial. That Tidd made no serious effort to injure defendant is apparent from the fact that the latter had no wound about the face, and only slight wounds in the back of the head and neck. It is true, defendant says he had congestion of the brain, about ten days after the homicide. so the doctors told him, but that evidently did not result from injury Tidd inflicted on him. The excitement resulting from taking human life, and the contemplation
This is elementary law. If the jury found that defendant had no reasonable cause to apprehend great personal injury, they were justified in finding all the elements of murder of the second degree., wilfulness, premeditation and ^malice aforethought, present in defendant’s' act. He did not act in the heat of passion. This he stated himself. An assault will not mitigate a homicide, unless it produce passion, and the party act under its operation. If the slayer act from an old grudge, and not from passion suddenly aroused by a legal provocation, it is murder at common law. In this case the defendant had a grudge against Tidd, and he says his passion was not caused by Tidd’s act at the time, and, hence, if he shot and killed Tidd without having reasonable cause to apprehend danger of great personal in jury, he was guilty of murder, and his conviction must stand.
Y. H. C. Brinckley, a witness for the state, testified that the defendant after the shooting came over where he (witness) was and said, ‘ ‘ Did I do right ? ’ ’ Witness replied that he did not think he did, to which defendant replied, “ Didn’t you see he was beating me to death?” Witness replied, “I don’t know anything about that.” No objection to this evidence was interposed at the time, but the prosecuting attorney asked the witness again what reply he made to defendant’s question, “Did I do right?” and then defendant objected. The court overruled the objection, and defendant excepted. The testimony was then repeated by the witness. It is now argued that the court erred in permitting the witness to state what he said to defendant. Conceding that exception to the evidence was properly saved, which is very doubtful, we do not
VI. It is also assigned for error that the court ought to have permitted the defendant to prove by one of the witnesses that Tidd had boxing gloves, and practiced with them. This evidence was not competent in this case. When it is doubtful which one of the parties brought on the difficulty, and was, therefore, the aggressor, evidence of the desperate character and quarrelsome disposition of the injured party is admissible. But here there is no question as to who provoked the difficulty, and, besides that, the offered evidence did not tend to prove that Tidd was desperate or quarrelsome. We cannot perceive, however, why defendant offered this evidence, or why the state objected to it. The only possible defense defendant had in the case was that he entered into the difficulty with no design to use a deadly weapon, and that during the heat and excitement of the conflict he drew the pistol, and fired the fatal shot in self-defense. This evidence would have tended to negative that defense. It was offered, of course, to show that Tidd, being a practiced boxer, defendant could not cope with him in the ordinary way, and this would have strengthened the position that defendant did not, from the start, intend to fight a fair fight. We have carefully examined this record, and we must say that defendant had an eminently fair trial. The instructions were more favorable to him than the
I have given the evidence in this case careful consideration, and am of the opinion that the jury should have been instructed on manslaughter in the third degree predicated upon the evidence of defendant, and the circumstances of this deplorable homicide.
The evidence shows that defendant, who was a freight-train conductor, was in the office when deceased, who was night operator, came in to relieve Shores, the day operator. Defendant was dressed and waiting for orders to take out his train. He had oh a heavy overcoat, a glove on his left hand, and held a glove and lantern in his right hand. He left the room to go to his train, and was called back by Shores for additional orders. He came in. and, as he passed deceased on his way to the desk occupied by Shores, he spoke the words “Black-headed fool.” These words provoked a noisy and abusive quarrel. Opprobrious names and epithets were applied by each to the other. There is but little doubt that the first demonstration of an assault was made by deceased, all advances were made by him and the evidence tends strongly to prove that he struck
The facts and circumstances, I think, are entirely consistent with this testimony. In such case an instruction should have been given, predicated upon the evidence given by defendant. Such has been the rule .since the defendant in a criminal case has been given the right to testify in his own behalf. State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. McKinzie, 102 Mo. 622. The exceptions made to this rule have, gone no further than to deny the right to instructions when the physical facts and the uncontradicted acts of a defendant conclusively contradict his
Taking defendant’s testimony into the account, it appears very clear to me that there was evidence in the case, which tended to prove that the homicide was committed “in a heat of passion,” and “without a design to effect death,” and that an instruction should, therefore, have been given upon the third degree of manslaughter. State v. Elliot, 98 Mo. 150; State v. Wilson, 98 Mo. 440; State v. Wensell, 98 Mo. 137; State v. McKinzie, 102 Mo. 622.
There was evidence from which the jury might readily have inferred that the fighting, in which the parties engaged, was not preconcerted by defendant; in fact he testified that he had no intention or expectation, while the quarrel was in progress, that it would result in a fight. The fight itself, growing out of the altercation, was sufficient to inflame the passions, and produce that heat of blood, which would reduce the crime from murder to manslaughter. State v. Wilson, 98 Mo. 449, opinion by Black, J., and authorities cited.
Some importance is given to the testimony of defendant when he says that he did not shoot “in the heat of passion.” Taking the connection in which this declaration is made we do not think he intended to use his language in a technical sense, if he himself knew what its technical meaning was. He said: “It (the shooting) was not in the heat of passion; did not think of shooting till my hand touched the pistol.” The jury should have taken his declaration with the other facts and circumstances, the quarrel and fight, and the condition and situation of the parties at the time, and from them all together determined whether or not the shooting was in the heat of passion.
agrees with me. For this error the judgment is reversed and cause remanded.
Concurrence Opinion
I concur in all that has been said by Judge Macearlane, and I desire to say that in my ■opinion the verdict of murder in the second degree is not warranted by the evidence.
The meeting between deceased and defendant was itself accidental. Had not the operator, Shores, recalled the defendant, he would not have met the deceased that ■evening. After he returned, he made. no preparations for a fight of any kind. He was still incumbered with ■overcoat, gloves and lantern. The evidence discloses that defendant was a boy of eighteen years, his assailant a man of twenty-seven years, weighing oné hundred and sixty pounds.
The man began the assault, continued it when no •resistance to amount to anything was being offered by defendant; the defendant had received a serious wound ■on his head only a short time before this by collision with a railroad bridge. His attempt to protect his head from the blows of the deceased is consistent with the universal law of self-preservation, and it was only when forced entirely across the office, and when he was completely at the mercy of his antagonist for whom he was ■evidently no match, that he remembered his revolver, pulled it and fired. The most that can be said is that he may have exceeded what was, necessary to protect his life, and, if so, he is guilty of manslaughter only in some degree. But, it seems to me, it is a clear case of .self-defense. One in his condition knowing the danger to his head, from a blow, and seeing no way of eluding his adversary, cannot be held to discriminate with too much nicety as to the amount of force he may use to •protect his life or body from threatened and impending injury. There is no evidence that he sought or brought ■on the difficulty with a felonious intent to kill Tidd or ■do him any bodily harm, nor is there in my opinion •evidence enough to justify a verdict based upon the fact that he voluntarily engaged in the fight. To me it