State v. Sinclair

Citation157 S.W. 339,250 Mo. 278
PartiesTHE STATE v. ALBERT SINCLAIR, Appellant
Decision Date20 May 1913
CourtUnited States State Supreme Court of Missouri

Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.

Reversed and remanded.

T. R R. Ely and Fort & Zimmerman for appellant.

(1) If it be granted that the home of defendant's mother, after the separation, followed the home of deceased, still, the deceased, having established his home at a place other than the place where the mother lived, and where he was killed could not claim the mother's home as his home, because he had established his home elsewhere. The law never required the husband to follow the wife to a new home, but at one time required the wife to follow the husband to the husband's new home. In this case, in no view of the law was the place where defendant's mother lived the home of the deceased and therefore, under the facts and circumstances of this case, deceased did not have as much right in the home of defendant's mother as defendant had. But the wife could acquire a separate home after the separation. There is substantial evidence in this record that defendant's mother and deceased had been living apart for quite awhile before the homicide; that the deceased was to blame for the separation; that the place where the mother lived was her place; that deceased lived at another place and that the mother had tried to hire deceased not to bother her family again and not to visit her home again. Under such circumstances the home of defendant's mother was not the home of deceased. Gould v. Crow, 57 Mo. 204; Shute v. Sargent, 36 A. 282; Matter of Florance, 54 Hun (N. Y.), 328. The wife has a right to acquire a separate domicile where the separation is caused by the husband's misconduct, and no subsequently acquired domicile of his could draw after it her domicile. Shaw v Shaw, 98 Mass. 158; Johnson v. Johnson, 57 Kan. 343; Derby v. Derby, 14 Ill.App. 645. If defendant's mother had the right to forbid the deceased to enter her home again, then she could delegate that right to her son, the defendant, and if she did delegate it to him he was guilty of no wrong in forbidding deceased to enter her home. Crittenden v. Com., 9 S.W. 386; Stanley v. Com., 6 S.W. 155. This instruction was a suggestion to the jury that, in the court's opinion, defendant was the aggressor in the difficulty in forbidding deceased to enter his mother's home without right to do so. Glaze v. State, 45 S.W. 906; State v. Lipp, 130 Mo.App. 400; Campbell v. Com., 11 S.W. 290. The right of the child to defend the mother against fraud and violence cannot be questioned on moral grounds, and if it may be questioned on legal grounds so much the worse for the law. Nor can such right be questioned in the light of nature's laws, for the latter laws have assigned this right to the beasts of the field and it prompts them to fly to their offspring when in danger of bodily harm. 25 Am. & Eng. Ency. Law (2 Ed.), 274; State v. Hickman, 95 Mo. 322; State v. Lipp, 130 Mo.App. 400. (2) The instruction being a good request for an instruction to the jury to the effect that if the jury found from the evidence that the first shot killed the deceased instantly, and was fired by defendant in the necessary defense of his life, then the fact, if the jury found it to be a fact, that defendant fired a second shot into the body of deceased, after he had fallen to the ground and was dead, could not deprive defendant of his right of self-defense at the time he fired the first shot, should have been given, for the probabilities are strong that, if it had been given, the jury would have acquitted defendant on the ground of self-defense. If the first shot killed the deceased instantly, and the second shot was fired into the body of deceased after he had fallen upon the ground and was dead, the defendant committed no crime in firing the second shot. Wilson v. State, 24 S.W. 409; Rogers v. State, 29 S.W. 894; Anderson v. State, 65 S.W. 523; 21 Am. & Eng. Ency. Law (2 Ed.), 92.

John T. Barker, Attorney-General, for the State; Paul P. Prosser, of counsel.

(1) Appellant argues and presents authorities upon the question of the lawful domicile of a husband and wife who have separated from each other; but we submit that the question of a lawful domicile for the purpose of bringing a divorce suit, or any other suit, is not the question involved here. The question here is simply one of the rights of the parties in the purview of the criminal law. No authority whatever is needed upon the very elementary proposition that a husband has the right to enter the home of his wife and no man has the right to deny him that privilege. Indeed, the fact is so self-evident, from the very relation of husband and wife itself, that a definite statement of such a rule would appear superfluous. And that is as far as the instruction goes. In stating that the deceased, Sam Jones, had "as much right" to enter the home of his wife as did the defendant, the instruction is altogether favorable to the defendant, who did not have "as much right" to enter such home as did the deceased. Under the evidence, even as stated by defendant himself, the instruction was eminently proper. State v. Evans, 124 Mo. 410; State v. Reed, 154 Mo. 131; State v. Matthews, 148 Mo. 194; Commonwealth v. Johnson, 213 Pa. St., 432; Wharton on Homicide (3 Ed.), sec. 309. (2) Even if the first shot did kill the deceased, evidence of the second was certainly competent as a part of the res gestae and as showing the animus with which the act was committed. Whether part of the res gestae or not, we are not aware of any exception to the rule that the movements, actions, conduct and voluntary statements of a person charged with a crime, made after the commission of the alleged offense, are always competent evidence. State v. Gabriel, 88 Mo. 639; State v. Daly, 210 Mo. 676. It was not for the court to separate and divide the details of the one act, and an instruction attempting to dissociate the second shot from the first shot would have been manifestly improper and would have served only to confuse and mislead the jury. State v. Thornhill, 177 Mo. 697; State v. Edwards, 203 Mo. 545.

BROWN, P. J. Faris and Walker, JJ., concur.

OPINION

BROWN, P. J.

Charged with murdering his stepfather, Sam Jones, defendant was convicted of manslaughter in the fourth degree, and appeals from a judgment of the circuit court of Dunklin county fixing his punishment at two years in the penitentiary.

All parties connected with this tragedy were farmers residing in the southern part of Dunklin county, Missouri. In the year 1911, Sam Jones, the deceased, a man of fifty-seven years of age, was married to Mrs. M. L. Sinclair, a widow, who resided upon her own farm. She is the mother of defendant.

After the marriage deceased (Jones) lived upon his wife's farm; the family consisting of deceased, his wife, Jeff Sinclair, a fourteen year old son of his wife by a former marriage, and Mrs. Gargus, his mother-in-law. The defendant resided on the same farm a short distance from his mother.

About six weeks before the tragedy deceased and his wife separated, deceased establishing his home with a half-brother named Baker about two miles from the home of his wife.

The cause of the separation is not made clear by the evidence. Deceased told one witness that he wanted to live with his wife, but she would not permit him. To some witnesses he indicated that defendant was responsible for the separation, and to other witnesses he placed the blame for the separation upon Mrs. Gargus, his mother-in-law. After the separation, deceased replevined a team of horses from his wife, which replevin suit was still pending when the killing occurred.

On the morning of April 22, 1912, deceased went to the home of his wife for the alleged purpose of obtaining some clothes he had left there. He took with him a small repeating rifle, which he set down outside the yard. Defendant was at the home of his mother when deceased arrived there, and when deceased started to enter the yard defendant killed him with a shot gun.

Defendant's version of the shooting is that when he saw the deceased approaching his mother's house he warned him to stay out, but deceased did not stop. Defendant then took a shot gun out of the rack, loaded it and again told deceased not to come into the house, whereupon deceased placed his hand upon his hip pocket and said to defendant: "Don't you move or I will kill you." Defendant then shot deceased in the left side, killing him instantly. Two shots were fired, the last one when deceased was falling or after he had fallen.

There was no eye-witness to the killing except defendant. Jones's body was found just inside the gate of his wife's yard. He had no weapon upon his person except a rock in his right hip pocket, which rock weighed about three-fourths of a pound. The coroner, a physician, gave it as his opinion that the rock was large enough with which to kill a man, but other witnesses stated that Jones had been carrying the rock a year or more "for luck" and they did not think it a dangerous weapon.

The first difficulty between defendant and deceased occurred in December, 1911, when they, with several other persons, were killing hogs. On that occasion defendant's fourteen year old brother, Jeff, was filling kettles with water to scald hogs. Deceased and defendant were scraping hogs with knives. Defendant's brother became very negligent about his work in filling the kettles and deceased started to slap him. At this point defendant became very angry and, sticking his knife in the ground, said to deceased: "By God, I won't stand for that." Whereupon deceased started to assault defendant with a knife, but was caught and prevented from doing...

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8 cases
  • State v. Brinkley
    • United States
    • Missouri Supreme Court
    • 11 d1 Março d1 1946
    ... ... Horrigan & Thompson: Law of Self-Defense, 750; 1 Hale: Pleas ... of the Crown, 484. (11) Defense of dwelling. Semayne's ... Case, supra; State v. Raper, 141 Mo. 327, 42 S.W ... 935; State v. Kennade, 121 Mo. 405, 26 S.W. 347; ... State v. Sinclair, 250 Mo. 278, 157 S.W. 339; 25 ... A.L.R. 508-563, an annotation on subject. (12) Occupant may ... require withdrawal of one originally in dwelling or in ... business property by invitation or sufference, where he ... becomes obnoxious or undesirable, and may use necessary force ... to effect ... ...
  • Travelers' Ins. Co. v. Beagles
    • United States
    • Missouri Supreme Court
    • 12 d6 Agosto d6 1933
    ... ... (d) ... Defendants have no homestead interest in this land ... Collier v. Porter, 16 S.W.2d 49; Rouse v ... Caton, 168 Mo. 288; State v. Sinclair, 250 Mo ... 278; Teckenbrock v. McLaughlin, 246 Mo. 711; ... State Bank of Eagle Grove v. Daugherty, 167 Mo. 1; ... Tucker v. Wells, ... ...
  • Cross v. Huffman
    • United States
    • Missouri Supreme Court
    • 20 d6 Dezembro d6 1919
    ... ... name as grantee, conveyed him no title as against her ...          In this ... State it is the settled law, that if the wife is a tenant in ... common, and there is a voluntary partition of the common ... estate, a deed made to the ... the life of the wife, and she alone can sue therefor." ...          In ... State v. Sinclair, 250 Mo. 278, 157 S.W. 339, this court ... said of Section 8309, Revised Statutes 1909: "This ... section has been construed to give the wife the ... ...
  • The State v. Dougherty
    • United States
    • Missouri Supreme Court
    • 19 d6 Março d6 1921
    ... ... instruction 4a, given by the court, was palpably erroneous ... and prejudicial in pointing out certain facts and commenting ... on the same. State v. Raferty, 252 Mo. 72; State ... v. Wertz, 191 Mo. 569; State v. Pate, 188 S.W ... 139; State v. Rutherford, 152 Mo. 130; State v ... Sinclair, 250 Mo. 278; State v. Malloch, 269 ... Mo. 235; State v. Rogers, 253 Mo. 399; State v ... Sivils, 105 Mo. 533 ...          Frank ... W. McAllister, Attorney-General, and H. P. Ragland, Assistant ... Attorney-General, for respondent ...          (1) The ... statements ... ...
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