242 Mo. 481 | Mo. | 1912
Having been convicted in the circuit court of Daviess county of murder in the second degree and sentenced to twenty-five years in the penitentiary defendant appealed.
James Wright testified that he saw defendant “run out into the middle of the street like, and Mr. Dugger after him, and Wilson (defendant) kind of stopped and Mr. Dugger caught up -with him and they clinched and in just a second or two” he heard a shot; that deceased then broke loose from defendant “and raised right up this way (illustrating) and threw his hands right up this way and kind of crow-hopped back from him just this way” and defendant fired a second shot. On cross-examination this witness stated that the first
James Stith testified that deceased, after being struck by the missile thrown by defendant, “pulled his hat over his head and struck up the walk after” defendant who ran out between the stands into the street and witness stepped aside to let deceased, who was pursuing defendant, pass through after him. As defendant ran he looked back and when he saw deceased coming he put his hand in his pocket and went on and deceased “ran up to him and threw his arm over him that way (indicating) and Wilson looked as though 'he ducked down like that, and when he did that” witness heard the report of the revolver but couldn’t see the men. Deceased then straightened up and "witness saw defendant fire a second shot. Deceased when he caught up with defendant, tried to catch him or “made a kind of lick or swipe at him” and defendant “ducked to escape that lick” and put his hand against deceased and tried to push him away. Witness said they were “right together” and there was “rather a struggle, when he threw his hand around that way”' and they “swung around a little bit in the struggle” until defendant was “more on the north than he was right at the time he (deceased) caught up with him.” This witness also testified that defendant had got across close to the little peanut stand just as deceased caught bim
P. M. Miller, who was within two or three feet of deceased and defendant when the first shot was fired, testified that he was standing near the peanut stand and heard a sound as of some hard object striking a board and then saw defendant come out into the street “in a kind of a trot like,” with deceased in pursuit; when defendant reached the stands across the street he looked around and checked up as deceased caught up with him.
Cross-examination: “Q. Dugger outran him and caught him? A. He (defendant) kind of stopped when he came to those stands. Q. He ran up into the stand? A. Not right up to them but near them. Q. Which hand did he catch him with? A. Of course, you spoke —he throwed his right hand or left hand over his shoulder. Q. Around his neck? A. It just went kind of raised over his shoulder, down just that way. Q. Show it on me? A. He kind of ran up this way and fell against him and struck over him like that (illustrating on counsel). Q. Struck at him twice? A. He didn’t hit him, he struck over him. Q. He didn’t hit him because he struck over him? A. Yes. Q. You saw the licks, one, two? A. Yes. Q. Striking over Mr. Wilson? A. Yes, sir. Q. And as you have described it, leaning on him? A. Yes, sir. Q. And Wilson was stooped down somewhat? A. A little bit. Q. Any? A. He kind of hunkered down a little. Q. And this .man was bent over him, striking him? A. Yes. Q. And struck the two licks? A. Yes; before he got to him he kind of leaned against him like; he didn’t have but just to stoop. Q. He had his weight on him apparently? A. Just enough to stop him, you know. Q. And he struck two licks with his right hand? A. Yes. Q. And at that time how far were you from him ? A. About two and a half feet. Q. And you saw what you are describing to the jury and think you are telling it
On recross-examination Miller further testified: “Q. You say that when Dugger left that walk he went after Wilson just as a man trying to catch another? A. It seemed that way. Q. And that’s what you have said all the time, isn’t it? A. Yes, sir. Q. And of course, after these two licks that you say struck him on the head, but you don’t think were sufficient to knock him down or knock his hat off, then it was after that that Mr. Wilson got Ms pistol out of his pocket, wasn’t it? A. He was getting it out all at the same time, about. Q. While these licks were being struck? A. Yes. Q. While this man was hitting him over the neck and head? A. Yes, sir.”
Victor Christopher testified that he saw the defendant throw and strike deceased; that the latter “kind of fell over” and stepped back and then defendant got off the walk and ran past the witness into the street; that deceased pursued and caught defendant and a scuffle ensued, whereupon defendant drew a revolver and fired. Witness could not tell whether deceased had anything in his hand because, as he said, “when Dugger had hold of Wilson his back was done turned southeast of me a little bit, and they were scuffling, and kind of weaving backward and forward a little bit there.” On cross-examination he testified that when defendant ran into the street deceased pursued and caught Mm and took hold of Mm and then he saw defendant draw a pistol and fire. Witness saw no blows, but could not say none were struck. The two were clinched and hence he could not tell whether deceased had anything in his hands.
On cross-examination witness said that when deceased overtook defendant the latter who had been going eastward in a “sort of trot” or “running walk,” stopped and looked north and south “or to see which way he could go” and thereupon deceased “just went up kind of behind him and folded his arms kind of over his head that way. ’ ’ Deceased was behind defendant and his arms were locked around defendant’s head and then it was defendant put his hand in his pocket, drew the pistol and fired. Witness said that if deceased struck defendant he did not see it.
W. S. Underwood testified that as defendant ran into the street he had his hand in his pocket. He checked up in the street, and ’deceased, who had caught up, “started to put his arm around him, and laid it on his shoulder about midway between his elbow and wrist” and then the first shot was fired. Witness saw no blows and no struggle.
Russell Stewart said that defendant ran, after throwing the missile which struck deceased, and as he passed the witness, who was standing in the street fourteen to sixteen feet from the sidewalk and east of it, he (defendant) saw that deceased was running after him and then he put his hand in his pocket. Defendant ran on east several feet, attempting to draw his pistol in the meantime, and then stopped and deceased, who had come up at ' once, threw his arms around defendant, and defendant fired.
The evidence for the State further tended to show that the first shot pierced the stomach and that a second shot, fired immediately “as quick as a man could shoot,” struck the collar bone and ranged downward through the upper part of the lung. At the next effort to fire the cartridge did not explode and then deceased moved away and as he reached the street crossing a third ball struck him in the calf of the leg. Defendant followed, fired a fourth but ineffectual shot and was then seized and disarmed after a struggle in which, to sum it up, he acted like a wild man. There was also evidence tending to show that the blow upon the head with the piece of brick thrown by defendant dazed deceased so that he ran unsteadily when pursuing defendant. The wounds inflicted by the first two shots fired were both of fatal character and from their effects death followed in a few hours. •
Such is the character of the evidence for the State.
On the part of the defense there was evidence tending to show that defendant and deceased had both lived in Coffey during the six, or seven years prior to the summer of 1900'; that defendant found two letters written by deceased to defendant’s wife. The discovery of the first of these in the summer of
With respect to the circumstances at and preceding the time the first two shots were fired, B. F. Stew■art testified that when Dugger was struck with the piece of brick thrown by defendant he “ bowed forward,” partially raised.up, stooped again, picked up the missile which had struck him, and then defendant started out between the stands in a trot with deceased
Fred Price saw deceased pick up the piece of brick with which he had been struck and start after defendant, who then jumped off the walk and started east followed by deceased, who, as he approached defendant, changed the weapon he was carrying from his left to his right hand. As deceased reached defendant he put his arm around his neck and the brick dropped to the ground.
Both these witnesses said that the defendant fired the first shot after deceased took hold of him and that the next shot was fired as deceased was leaning forward toward defendant, about two and one half feet from him.
Defendant testified in his own behalf. He testified, among other things, that he attended the picnic at Coffey on both the 16th and 17th of August, 1910', and that about two p. m. on the 17th he was standing near the telephone pole near the southwest corner of the little square formed by the intersection of the streets. Presently he saw deceased on the north side of the street. The latter looked up and down the street and then turned his gaze to the south and espied defendant. Deceased started across toward the spot where defendant was standing. Before he reached defendant’s position the latter’s attention was attracted elsewhere by some noise near him and while his attention was thus engaged deceased ran against him, gave him a
“A. He looked around and it looked to me like he was looking down there at the telephone pole at that time, and he dropped his head and seen I was standing there, and he picked up something off of the sidewalk, a rock or something, and he started after me, and it seemed like something came over me and I wanted to go away from there. I got down off the walk and started out in the street and saw he was after me, and I got out in the center of the street and turned around and saw he had something raised up this way, and it looked like he was going to strike me, and I ducked down, and he struck over me, and we scuffled around a little bit. Q. What did you do? A. I looked up and it looked like he was going to strike again, and I got my gun and fired. Q. Why did you fire? A. Because it looked like he was going to hurt me. Q. What did you see in his hand? A. A rock or brick, I couldn’t state which. Q. State whether or not he was in the attitude of striking you when you fired? A. That’s the way I thought he was then; it looked like he was in the act of striking me at the time.”
On cross-examination he testified that he ran from the sidewalk, on the west, across the. street to the stands on the east side; that there were sevefal people standing over there and he “looked to see which way he could go and by that time Dugger got there,” deceased seized him by the shoulder and struck at his head with the brick or rock; he dodged in toward deceased and the blow missed his head, the brick falling from deceased’s hand. Pie said he was then trying to push deceased away with his right hand; deceased then
The above lengthy statement of the facts is made necessary by reason of the character of the questions presented for decision by this voluminous record.
I. Exception was taken to the action of the trial - court in refusing to instruct on manslaughter in the second degree. The killing in this case, having been voluntary, was not manslaughter in the second degree unless it comes within the terms of section 4461, Revised Statutes 1909, which reads as follows: “Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or do any other unlawful act after such attempt shall have failed, shall be deemed gmilty of manslaughter in the second degree.”
This court has not often had occasion to discuss the scope of this section. In State v. Blunt, 91 Mo. l. c. 508, it was held proper to give an instruction on . the offense which it defines in a case in which the evidence tehded to show that deceased assailed defendant with a razor, with felonious intent, and was disarmed and slain by defendant with the weapon thus obtained.
The' section has been held (State v. Harper, 149 Mo. l. c. 527; State v. Dierberger, 96 Mo. l. c. 676) to have no application to a case in which the attempt to commit the felony or unlawful act had not failed at the time the killing occurred.
These authorities and the language of the statute make it clear that an instruction on manslaughter in the second degree ought to have been, given in case there was substantial evidence that the defendant was
On the evidence the jury might have found, under the instructions given, that defendant had reasonable cause to apprehend and did apprehend death or great bodily harm at the time deceased seized and struck at him with the brick, but that all danger of either death or great bodily harm ended when deceased’s weapon fell from his hand and that the defendant had no reasonable cause to apprehend either death or great bodily harm when he fired, and, consequently, that he did not act in self-defense, as defined by the court. There was substantial evidence to warrant such a finding. We think the instructions should have informed the jury that in case they did so find they must then en-quire whether defendant’s act was manslaughter in the second degree, properly defining that offense for the jury’s information. As indicated above, it has been held, correctly, that section 4461 does not ordinarily apply to a case in which the struggle is a continuous one — for the reason that in such case the attempt has not failed. In this respect the facts of this case are peculiar. Some of the evidence tends to show that the situation was radically changed by the first
II. It is urged the evidence tended to show the killing was done in the heat of passion, aroused by adequate provocation, and that consequently the trial court erred in refusing to instruct on manslaughter in the fourth degree, as requested. The learned Attorney-General, in his brief, very frankly concedes that the correctness of the trial court’s ruling in this connection is open to serious question. The rule as to what is manslaughter in the fourth degree, when the killing is intentional is sometimes formulated thus: It is the intentional killing of a human being in a heat of passion on a reasonable provocation, without malice and without premeditation, and under circumstances which will not render the killing justifiable or excusable homicide. [State v. Sebastian, 215 Mo. l. c. 80, and cases cited.] As to what constitutes reasonable provocation, as an abstract proposition, it is unnecessary, in the circumstances of this case, to inquire. An assault followed by an actual battery is usually deemed adequate provocation and that there is substantial evidence tending to show such an assault after defendant had withdrawn from the difficulty is apparent from a reading of the testimony of the witnesses. That a conviction for manslaughter in the fourth degree would have been upheld on this record, if that question had been fairly submitted, seems cer
In the first place the quotation does not fully state the rule as laid down by Mr. Kerr. He prefaces his statement of it with the remark that “Where the existence of deliberate malice in the slayer is once ascertained, its continuance until the act of killing will be presumed, unless such presumption is precluded by subsequent facts and circumstances.” Mr. Kerr, by repetition of the phrase, makes it clear that the rule mentioned is applicable only after malice or a deliberate purpose to kill on the part of the prisoner is ascertained. By whom is the existence of malice or deliberate purpose to kill to be ascertained? Certainly, in a case like this, in which the most that can be said
III. It is also insisted that in the argument before the jury counsel representing the State overstepped proper bounds. Since this ease must be retried for other reasons we do not deem it necessary to discuss this assignment at length. We suggest, however, that counsel must keep or be kept within the record or it may be necessary to set aside the verdict obtained. The rule has been often announced and need not be repeated now. It is easy to conform to it and we venture the hope that on the retrial of this case it will be carefuly borne in mind.
For the reasons given the judgment is reversed and the cause remanded.
PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.