State v. Forsythe

• Decision Date: 15 November 1886
• Citation: 89 Mo. 667,1 S.W. 834
• Parties: STATE v. FORSYTHE and another.
• Court: Missouri Supreme Court

1 S.W. 834

89 Mo. 667

STATE v. FORSYTHE and another.

Supreme Court of Missouri.

November 15, 1886.

1. ASSAULT AND BATTERY — CRIMINAL PROSECUTION — INSTRUCTIONS — FARMING ON SHARES — RIGHT TO ENTER PREMISES.

In the trial of an indictment for assault, where the evidence shows that there was a verbal lease between one of the defendants and the complaining witness, under which there was to be a division of the crops grown by the latter; that the defendants had entered upon the premises and demanded that a division should be made; and that thereupon the complaining witness having resisted by force any division at that time, a quarrel arose, and the assault was committed, as the defendants allege, in self-defense, — the terms of the verbal lease, the defendants' right to enter upon the premises for the purpose of effecting a division, and the extent to which the complaining witness would be justified in using force to resist them, ought to be left to the jury under proper instructions; and the court errs in giving a charge from which it might be inferred that, if the defendants were insisting upon or trying to divide the crop, then the complaining witness might remove them, and to that end use all the force necessary.

2. SAME — QUARREL FORMING COMMENCEMENT OF DISPUTE — EVIDENCE.

In such a case, evidence of a quarrel which took place between the complaining witness and one of the defendants, in which the complaining witness charged the defendant with having accused his wife of having stolen part of the crop, is admissible as being the beginning, and therefore a part, of the quarrel; and also, malice aforethought having been made part of the issue, as tending to show the state of feeling between the parties.

3. CRIMINAL LAW — PROSECUTING ATTORNEY'S ARGUMENT — USE OF IMPROPER LANGUAGE — OBJECTION.

Where the prosecuting attorney uses improper language in his closing argument, the attention of the court ought to be called to it at the time, and it is too late to make objection for the first time in a motion for a new trial.

Appeal from Henry circuit court.

Indictment of Edward Forsythe for assault with intent to kill David McCaw, and of James Forsythe for being present, and aiding and abetting Edward.

McCaw testified in regard to a quarrel on the morning of the alleged assault, but about half an hour before it, as follows: "I was at home on the morning of the fuss. I was living on James Forsythe's land. Had it rented. Mr. Forsythe, the old man, came through the gate on horseback, and was passing along, and stopped about fifteen steps from the porch, and looked around, when I said to him, `Mr. Forsythe, what have you got to settle with me?' My brother-in-law, Chas. Howard, had told me what he had said." Witness was stopped by the court from detailing what Howard had told him, and defendants objected to the introduction of any evidence as to what took place at that time, because Ed Forsythe was not present, and because it did not appear to be a part of the difficulty at the time of the shooting; but the court overruled the objection, and held the evidence competent as to James Forsythe, and defendants excepted. Witness then continuing, said: "When I spoke to the old man, he slipped down off his horse, on the opposite side from me, and I got up and walked around in front of the horse's head, and saw that he had his knife out. I then picked up a little stick, and started towards him; but I soon thought the stick would do me no good if he aimed to use his knife, so I threw down the stick, and drew my knife and opened it, and walked right close jam up to him, — right close up to his face, — and said: `Old man, if you want to knife this thing out, I've got one; just come on.' Then I says: `You just say she stole potatoes, and I'll wear the earth out with you right here, sir,' I said: `You old hog, you can't come here and abuse my wife when I am gone.' He said: `I didn't know that I accused your wife of stealing potatoes.' He then got on his horse and started off, and after he got off a piece, he said: `She did steal potatoes. You all have been stealing.' He then went off across the field." To the whole of the foregoing evidence about the fuss in the morning between James Forsythe and McCaw the defendants objected, because it was no part of the difficulty at the time of the shooting; but the court overruled the objection, and defendants excepted.

The court instructed the jury as follows: "* * * (5) If the jury find and believe from the evidence that on the day of the difficulty the prosecuting witness was at his house, on a place of which he had the lawful possession as a tenant, and that the defendants came into such inclosure so rented by him, and then and there commenced an attack on David McCaw, or to violate his rights as such tenant, by insisting on or trying to divide a certain potato crop against his will, then said McCaw had a right to command said defendants to leave said premises in a lawful manner, and to remove them, if necessary, using no more force than was necessary; and if said McCaw only used such force as was necessary, and in a lawful manner, then this would not justify defendants, or either of them, in attempting to shoot or kill him. But, if the jury find and believe that, under an agreement with James Forsythe prior to his going on such place, said McCaw agreed to plant and cultivate certain land, to be furnished by said James Forsythe, with potatoes furnished by Forsythe, and to give said James Forsythe one-half of said potatoes, and each party had the right to use said potatoes for eating, and that said Forsythe had not given or granted the exclusive use or possession of this potato land to McCaw, and that on the morning in question Forsythe and his son were there to divide the potatoes, they were there for a lawful purpose, and, unless they commenced the...