The State v. Darling
| Decision Date | 05 March 1907 |
| Citation | 100 S.W. 631,202 Mo. 150 |
| Parties | THE STATE v. SILAS DARLING, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cooper Circuit Court. -- Hon. Wm. H. Martin, Judge.
Reversed and remanded.
W. V Draffen and C. D. Corum for appellant.
(1) The court erred in failing to correctly announce the law of self-defense. (a) Defendant, under no view that can be taken was guilty of any crime, if his brother, Ernest Darling acted in self-defense. It was, therefore, incumbent upon the court to correctly instruct the jury upon this inestimable right. Instruction 9 is the only one pertaining to the law of self-defense that was given in the case. That it is erroneous, confusing, and deprives defendant of his rights under the law, is plain. State v. Starr, 38 Mo. 270; State v. Slone, 47 Mo. 612; State v. Eaton, 75 Mo. 591; State v. Johnson, 76 Mo. 126; State v. Harrod, 102 Mo. 612; State v. Smith, 125 Mo. 8; Nichols v. Winfrey, 79 Mo. 547; State v. Hollingsworth, 156 Mo. 187. (b) It is no answer to this contention of defendant's to say that in one part of the instruction the jurors were told that it was not necessary for the danger to be real. The court did say that. But before the jury had time to grasp and digest the utterance, the court retracted and told them it was necessary for defendant to show that danger actually existed. (2) The court erred in refusing to permit defendant to attack the credibility of William Spry. State v. Privitt, 144 Mo. 94; State v. Jones, 106 Mo. 311; State v. Elkins, 101 Mo. 352; People v. Anderson, 105 Cal. 32; 1 Greenleaf on Ev. (15 Ed.), sec. 450; 1 Wigmore on Ev., sec. 950; 30 Am. and Eng. Ency. Law, 1088, 1089. The hostility of the witness may be shown by independent testimony without even first examining the witness himself as to his hostility. People v. Moore, 15 Wend. 419; People v. Thompson, 41 N.Y. 6; People v. Brooks, 30 N.E. 189. The bias of a witness is not a material matter. Hollingsworth v. State, 14 S.W. 41; 1 Greenleaf on Ev., sec. 450; Crumpton v. State, 12 Ark. 972; Wharton on Criminal Ev., sec. 485. Nor is it collateral. Bennet v. State, 13 S.W. 105; Gillett on Indirect & Collateral Ev., 139; 30 Am. and Eng. Ency. Law, 1102; Underhill on Criminal Ev., 305. The same rule applies in civil cases. Hartpence v. Rodgers, 143 Mo. 623; Gale v. Railroad, 76 N.Y. 594; Schultz v. Railroad, 89 N.Y. 242; Garnsey v. Rhodes, 138 N.Y. 461; Hedge v. Platt, 22 Conn. 262; Cask v. Brown, 34 N.H. 460; Starr v. Cragen, 24 Hun 177; Beck v. Hood, 39 Al. 842. (3) Instruction 8 absolutely deprived defendant of the right of self-defense. It was not necessary under this instruction for the jury to find that Ernest Darling commenced the difficulty by assaulting Jeffress or that he provoked the difficulty by opprobrious language addressed to him, or that he brought on the difficulty in any way. The language of the instruction is that if "during such difficulty;" it does not say "if during a difficulty caused and brought about by any wrongful act of Ernest Darling." The difficulty may have been caused and brought on by deceased, and still defendants would have been guilty of manslaughter. Under the instruction given, the jury must have found defendant guilty. And this notwithstanding they might have believed the evidence which was offered on behalf of defendant, to the effect that Ernest Darling was inoffensive and unoffending when he was assaulted by the deceased with a deadly weapon. State v. Gordon, 191 Mo. 121. No person can be guilty of manslaughter simply because he has formed an intention in his mind to whip another person. A man cannot be convicted of crime because he has an unlawful intent. He must have done some act to effectuate the intention. In the class of cases which we are considering, he must have provoked the combat or brought on the difficulty for the purpose of effectuating his intention to whip his adversary. The instruction at bar finds no support in reason or authority. State v. Evans, 124 Mo. 410; State v. Gordon, 191 Mo. 114; State v. Partlow, 90 Mo. 609; State v. Gilmore, 95 Mo. 554; State v. Patterson, 159 Mo. 560; State v. Garrett, 170 Mo. 395; Saunders v. State, 97 S.W. 1046. (4) The court permitted the State to prove by Charles Carroll that on his way to Blackwater on the afternoon of the tragedy he passed within a quarter of a mile of the Darling home and in plain view thereof. There was no evidence offered that defendant, or his co-defendants, either saw or were in a position to see Mr. Carroll as he passed, nor does the evidence show that Carroll saw defendant, or either of the defendants, on his way to Blackwater. The admission of this testimony was error. State v. Darling, 199 Mo. 168.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) Much stress is laid by appellant on the action of the court in giving the instruction on the subject of self-defense; but said instruction, when carefully examined, is not subject to said criticism. In reading said instruction and in considering the whole of it, it will be seen that it fully stated the law of self-defense to the jury, and an intelligent jury could not have been misled by reason thereof. State v. Smith, 125 Mo. 8. It is not necessary for the court to use the same formula every time; and even though the instruction is awkwardly worded, yet if it fairly states the law to the jury on the subject of self-defense, the instruction is sufficient. In a case where the court instructed the jury that they must be satisfied of defendant's guilt by the evidence in the case, or by the lack of evidence, this court held that the instruction, when considered as a whole, did not misdirect the jury, and the judgment was affirmed. State v. Kelley, 191 Mo. 680. (2) Spry, when questioned by defendant's attorney, replied that he had not made statements to certain men on the panel of forty to the effect that the defendant was guilty, should be punished, etc. Thereupon, defendant offered to prove by certain members of the panel of forty that Mr. Spry did make such statements to them prior to the selection of the twelve men to try this case. It will not require much argument to convince this court that the trial court ruled properly when it excluded said proffered evidence. The rule which all our courts have adopted is that the examination of a witness and the contradiction of a witness on such matters rests in the discretion of the trial court. 2 Wigmore on Ev., sec. 950; 1 Elliott on Evid., sec. 161; 1 Greenleaf on Evid., sec. 450; People v. Brooks, 131 N.Y. 326; Consaul v. Sheldon, 35 Neb. 254. And our authorities hold that the test of the admissibility of evidence in contradiction of the cross-examination of a witness is whether defendant would have the right, as an original proposition, to have introduced such contradictory evidence. Wharton's Crim. Evid., sec. 485.
At the October term, 1905, of the circuit court of Cooper county, upon an information filed by the prosecuting attorney of said county on the 16th day of May, 1905, charging the defendant and one Ernest Darling and one Dorvil Burris, with murder in the first degree for the killing of one Samuel Jeffress, at said county, on the 13th day of March, 1905, the defendant was convicted of manslaughter in the fourth degree and his punishment assessed at two years in the penitentiary. After filing unsuccessful motions for new trial and in arrest of judgment, defendant appealed.
Prior to the trial of this defendant, his co-indictee, Dorvil Burris, had entered a plea of guilty to manslaughter in the fourth degree, had been sentenced to two years in the penitentiary, and been paroled.
The State's evidence tended to show that the defendant and Ernest Darling were brothers, and lived with their parents on a farm in Cooper county, seven miles from Blackwater, and that Dorvil Burris lived with the Darlings and worked on the farm. Sam Jeffress, the deceased, prior to Saturday, March 11, 1905, lived with his mother in the village of Nelson, Saline county, and a few miles from Blackwater. On said Saturday the deceased went to work as a farm hand for one Charles Carroll, whose farm was situated about two miles from the Darling homestead. On Sunday afternoon Emmett Yeager visited at the Darling home, and told defendant and his brother that the deceased had gone to work for Charles Carroll. An unfriendly feeling had been existing between the deceased and both of the Darling boys, and as soon as Yeager had imparted this information to the brothers Ernest Darling said he was going over to Carroll's next morning to "get" the deceased. Afterwards, in another room of the house, Ernest Darling repeated his threat in the presence of the defendant, and later, the same evening, the defendant said to witness Burris, "Yes, I believe I will go down with Ern tomorrow; Sam might make a knife play." On Monday the three young men worked about the Darling farm until noon, when the arrangements were made to go over to the Carroll farm. The defendant and his two companions went over to the barn of the Darling place and had a talk on the advisability of going after the deceased at that time, and Burris insisted that it would be best to wait and some day get deceased on the road. Ernest Darling answered, "No, if I don't get him now I never will get him." Defendant said, "No, Dorvil, I believe he ought to get him now." After the conversation at the barn, defendant and his brother went around on the side of the house where there was a pile of old iron. On the way to Carroll's the defendant said to his brother, "You will have to watch him if he is working with a hoe or scythe, or something to cut...
To continue reading
Request your trial