216 Mo. 378 | Mo. | 1909
The defendant has appealed to this court from the conviction of manslaughter in the first degree, at the November term, 1907, of the circuit court of Clay county.
The prosecution was begun on November 7, 1906, by the prosecuting attorney of Clay county filing an information in the circuit court, duly verified, wherein he charged the defendant with having on the 11th day of October, 1906, feloniously, deliberately, premeditatedly, on purpose and of his malice aforethought shot and killed one Inez Webb. He was duly arraigned and entered his plea of not guilty and the cause as above stated was tried at the November term, 1907.
The evidence tended to show that at the Peddicord Hotel in Smithville, Clay county, on the morning of the 11th day of October, 1906, the defendant Jesse Webb and Inez Webb or Walkup were both shot. Defendant received a pistol bullet near the heart and the deceased received three bullet wounds near the heart and one through the head. She died immediately. Prior to the shooting for some months both the defendant and the deceased worked at the State Hospital for the Insane at St. Joseph, Missouri. They had associated together for some time and the evidence tended to show that he was a consumptive. He quit work at the Hospital October 1, 1906, and she quit work some two days later. They were both employed at the Hospital as day nurses. He had been employed at the Hospital about two years, and she had been employed there from seven to twelve months. They had been associated together for about two months. Dr. Woodson, the Superintendent of the Hospital, testified that Webb was run down and not strong and he had prescribed malt and cod liver oil for him. After leaving the Hospital, defendant went down into
The statement of the defendant was offered in evidence, which had been taken by the coroner, but the defendant testified that he had no remembrance of making any statement whatever. The statement was signed before the coroner by defendant’s mark. In this statement the defendant said his wife did the shooting and as soon as she shot him she lay down on the bed and shot herself two or three times. She put her arms around his neck and said, “Oh, Jess, are you dead?” She said this, however, before she shot
The court instructed the jury on murder in the first degree and on manslaughter in the first degree. As the jury found the defendant guilty of manslaughter only, the charge of murder is eliminated from the case. The fifth instruction is in the following words:
“If the jury believe from the evidence that deceased committed suicide and that defendant counseled, advised and assisted deceased to do so, then, even though defendant may have changed his mind before the act was committed and endeavored to dissuade her from such purpose, then the mere fact that defendant did change his mind and endeavor to dissuade her will not excuse defendant from such counsel, advice and assistance, if any, unless you believe that deceased led defendant to believe in good faith that she had abandoned such idea, and then afterwards killed herself of her own volition, and not under the influence of his counsel, advice and assistance, if any, to do so. And if he did counsel, advise and assist her to commit suicide and she afterwards killed herself, the burden is on defendant to show that such killing*387 was done of her own volition and not under the influence of his advice, counsel or assistance, if any.”
The questions presented for our consideration relate entirely the correctness of the instructions given and refused.
I. Under the common law, if one counseled another to commit suicide and the other, by reason of the encouragement and advice, killed himself, the adviser was guilty of murder as an aider and abettor, provided he was present when his advice was carried out. It was ruled in Rex v. Tyson, Russ. & Ry. 523, that if two persons mutually agree to die together and, in pursuance of the agreement, each attempts to kill himself, but the means employed to produce death takes effect on only one, the survivor is guilty of murder. But under the statute of this State, section 1822, Revised Statutes 1899, “Every person deliberately assisting another in the commission of self-murder shall be deemed guilty of manslaughter in the first degree.” The crucial point in the case is as to the correctness of instruction number five as above set out in the statement of the cause. It will be noted that this instruction required the jury to find, first, that the deceased committed suicide, and, second, that the defendant counseled, advised and assisted her to do so. And then directed the jury that even though the defendant changed his mind before the criminal act was committed and endeavored to dissuade her from such purpose, then the fact that he did change his mind and endeavor to dissuade her will not excuse him from such counsel, advice and assistance, unless the jury believe that the deceased led the defendant to believe in good faith that she had abandoned such idea, and then afterwards killed herself of her own volition, and not under the influence of his counsel, advice and assistance, if any, to do so. The diligence of counsel has not availed to find a precedent
In effect we take it that this prosecution is based upon the theory of a conspiracy between the defendant and the deceased that each should commit suicide and the instruction directs the jury in effect that although the defendant withdrew from the conspiracy before the suicide was committed by deceased and although he endeavored to dissuade her from her purpose to kill herself, these facts did not excuse the defendant from his previous agreement and advice to commit suicide, unless the deceased led the defendant to believe that she also had abandoned such idea, and then killed herself of her own volition. It is a general principle of the criminal law that although several parties conspire to do a criminal act, there is a place of repentance, a locus peniteniiae, so that before the act is done, either one or all of the parties may abandon their design and thus avoid committing the criminal act. [U. S. v. Britton, 108 U. S. 1. c. 205.] This principle is familiar in the law of homicide'. Thus it is said: “Though a man should be in the wrong in the first instance, yet a ‘space for repentance is always open, and where a combatant in good faith withdraws as far as he can, really intending to abandon the conflict, ’ and his adversary still pursues him, then, if taldng life becomes necessary to save his own, he will be justified.” [State v. Partlow, 90 Mo. 1. c. 627; 1 Bishop’s Criminal Law (5 Ed.), sec. 871; Horrigan and Thompson on Self-Defense, 227; 4 Blackstone’s Com., 184.] The instruction seems to concede this principle of. permitting the defendant to abandon his previous intention of committing suicide, and agreeing that the deceased should also do so at the same time, but this right is made dependent upon the fact that the deceased also abandoned her purpose to com
• But the instruction is, in our opinion, also bad in that it places the burden on the defendant to show that the suicide of the deceased was committed of her own volition and not under the influence of defendant’s advice and counsel. We think this instruction violates the rule that in a criminal prosecution the burden is upon the State to establish the guilt of the defendant and not upon the defendant to prove his innocence. [State v. Hickam, 95 Mo. 1. c. 329; State v. Hardelein, 169 Mo. 579.]
In the last-cited case it is said: “Where a defendant pleads not guilty and admits nothing against himself, as in the case at bar, the burden of proof is on the State to first make out a case against him which would entitle it to go to the jury, but this does not change the burden of proof, which remains with the State throughout the trial, and whether or not the evidence is sufficient to overcome the presumption of innocence of defendant, and to establish his guilt beyond a reasonable doubt, when all of the evidence
Our best judgment is that upon both of these grounds this instruction was erroneous and should not have been given in this form. It denied the defendant the right to repent of his ill-considered promise to commit suicide with the deceased, and erroneously placed the burden upon him of proving his innocence instead of requiring the State to prove his guilt beyond a reasonable doubt.
II. Error is also assigned upon the refusal of the court to give instructions A, B, C and D requested by the defendant.
Instruction I) is in these words: “If the jury believe from the evidence that the defendant procured a pistol with which he and the deceased intended to commit suicide and afterwards changed his mind and tried to escape from the consequences of such an agreement but deceased refused to permit him to escape therefrom and on account of physical weakness he could not by force leave her, and that she did the shooting, then defendant did not deliberately assist her to commit self-murder and is not guilty of manslaughter in the first degree.” This instruction contains the substance of instruction C requested, and announces the opposite of the instruction five given by the court, which we have just held erroneous. In our opinion this instruction D was a proper one, and should have been given, and instruction numbered 5 given by the court should have been refused. We think there is no error in refusing instruction B requested by the defendant as the court had fully covered that proposition in its own instructions, and the same can be said as to instruction A.
III. Counsel complains also of instruction numbered 11 given by the court, which is the ordinary in