The State v. Rogers
| Decision Date | 09 December 1913 |
| Citation | 161 S.W. 770,253 Mo. 399 |
| Parties | THE STATE v. FLOYD H. ROGERS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.
Reversed and remanded.
Fort & Zimmerman for appellant.
(1) The law of self-defense does imply the right of attack. State v. McDonald, 57 Mo. 13; State v. Matthews, 148 Mo. 193; 25 Am. & Eng. Ency. Law (2 Ed.), 274 et seq. (2) The instruction on self-defense is inconsistent and misleading. The court states in positive and unequivocal terms that the law of self-defense does not imply the right of attack, but follows this statement of the law with the negative statement of the proposition that the law of self-defense does imply under certain circumstances, the right of attack. The force and effect of such an instruction could not do otherwise than confuse and mislead the jury in their consideration of the acts of defendant, at the time of the shooting, and was therefore, prejudicial to defendant's defense. 2 Ency Pl. & Pr., p. 145, sec. 6. (3) These statements made to Blankenship and Hardy were in no part of the res gestae and did not stand in immediate causal relation to the act of shooting. The shooting was admitted, no plea of insanity was made and too great a time had elapsed since the killing, to make these statements competent or material for any purpose. State v. McKenzie, 128 S.W. 952; 3 Wigmore on Ev., p. 2253, sec. 1749 and notes. Defendant lived more than two hundred yards from the scene of the homicide. After the shooting, he walked home. On arriving home, defendant put up the gun, explained what had happened and did not seem to be excited or agitated in mind. (4) The instruction given by the court, permitting the jury to consider the statements made by defendant after going home, was an unwarranted comment on the evidence. It is error to single out, in an instruction, a particular portion of evidence, to the exclusion of the rest, and submit the part, thus particularized, to a jury; or, to comment upon any particular part of evidence. State v. Holmes, 144 S.W. 418; State v. Mitchell, 129 S.W. 917; State v. Shelton, 122 S.W. 732; State v. Chinn, 133 S.W. 1196; 3 Ency. Pl. & Pr. 185, sec. 12, et seq.
John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
(1) Where one statute adopts the particular provision of another by a specific and descriptive reference to the statute or provisions adopted, the effect is the same as though the statute or provisions adopted had been incorporated bodily into the adopting statute. 2 Lewis's Sutherland's Stat. Const., sec. 405, p. 787, and cases in note 27. (2) Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions, amendments, modifications or repeal of the statute so taken, unless it does so by express intent. 3 Lewis's Sutherland's Stat. Const., sec. 405, p. 708, and cases in notes 29 and 30. (3) Another form of adoption is one wherein the reference is not to any particular statute or part of a statute, but to the law generally which governs a particular subject. The reference in such case means the law as it exists from time to time or at the time the exigency arises to which the law is to be applied. 2 Lewis's Sutherland's Stat. Const., sec. 405, p. 789, and cases in notes 36 and 37. (4) "As is now provided by law," means as is provided by law at the time of the enactment of the law. Chapman v. Holmes, 10 N.J.L. 26; Pike v. Kennedy, 15 Ore. 420; Fletcher v. State, 49 Ind. 124; State v. Bassa, 69 Conn. 335; Culver v. People, 43 N. E. (Ill.) 812. (5) The Act of 1911 repealing Sec. 2029, R.S. 1909, and enacting a new section in lieu thereof, did not change the law governing the settling, signing, sealing and filing of bills of exceptions in criminal cases. Sec. 5245, R.S. 1909, does not provide that bills of exceptions shall be settled, signed, sealed and filed as may be allowed by law in civil cases, nor does it provide that such bills shall be settled, etc., as now or hereafter allowed by law in civil cases, but emphatically, positively and unequivocally declares "as now allowed by law in civil actions," etc. The Legislature that passed the Act of 1911 was only dealing with the subject of bills of exceptions in civil actions. The act does not purport to be dealing with the matter of bills of exceptions in criminal cases, although it could well have been made to apply to criminal cases had the Legislature intended or desired that it should do so. St. Louis v. Gunning, 138 Mo. 352; Gaston v. Lamkin, 115 Mo. 32.
Walker, J., concurs in all of opinion except paragraph 3 and dissents from the result announced.
Charged with murder and convicted of manslaughter, defendant appeals from a judgment of the circuit court of Dunklin county fixing his punishment at two years in the penitentiary.
Defendant shot and killed one A. J. Lovins at a farm occupied by Thomas Walls, in Dunklin county, on Sunday, June 23, 1912. The circumstances surrounding and leading up to this tragedy were as follows:
In the early part of the year 1912, the defendant was hired to Thomas Walls as a farm hand. The family of Walls consisted of his wife, stepdaughter and three sons, Elmer, Jack and Tommie, all grown, or nearly grown. Thomas Walls will hereafter be referred to as Walls, Sr.
A courtship sprang up between defendant and the stepdaughter of Walls, Sr., which resulted in their marriage about six weeks before the tragedy. Walls, Sr., was very much displeased at the marriage, and, on account of the fact that they were not welcome at the Walls home, defendant and his wife went to board with one T. A. Blankenship, who resided some two hundred yards from the Walls home. After the departure of defendant from the home of Walls, Sr., one A. J. Lovins (sometimes referred to in this opinion as "Bub") was employed to take his place as a farm hand.
On the day of the tragedy one Dora Stevens paid a visit to the Walls family. She is a niece of Walls, Sr., and was at that time engaged to marry Lovins, the hired hand. In going to town to meet her, Walls, Sr., Elmer Walls and Lovins, each procured a quart of whiskey, of which Lovins and Walls, Sr., partook quite freely. During the day defendant and his wife came along the road by the home of Walls, Sr., and he invited them into his house. This was the first time Walls, Sr., had shown a disposition to be friendly with them since their marriage. They accepted the invitation and remained there until quite late in the afternoon.
Walls, Sr., Lovins and defendant took several drinks of whiskey together during the day, and when night drew near Walls, Sr., and Lovins were quite drunk, and defendant was partially drunk. At one time during the afternoon Walls, Sr., proposed to defendant and Lovins that they kiss all the women present. Walls, Sr., did kiss defendant's wife (his stepdaughter), and defendant kissed Dora Stevens; but if this incident caused any friction or ill will between the parties it does not appear in the evidence.
Defendant and his wife returned to Blankenship's (where they were boarding). After their departure Walls, Sr., and Lovins decided to attend a church service which was being conducted near-by. Dora Stevens, believing that if they attended church in their then drunken condition they would get into trouble, tried to dissuade them from going, but failing in that effort she sent Jack Walls to request defendant to come back to the Walls home and help keep the drunken men away from church. She testified that she thought defendant could exert a greater influence over Walls, Sr., and Lovins than anyone else.
Pursuant to this request, defendant placed a revolver in his pocket and returned to the Walls home. On arriving there he found Walls, Sr., very angry over the alleged fact that somebody had stolen his whiskey. Defendant asked Lovins and Elmer Walls who took the old man's whiskey, whereupon Lovins replied: "You would not accuse me of stealing it, would you?" Defendant replied: "Some of you took it, and if you will give it to him, or give him a drink, he will get quiet." This remark seemed to anger Lovins very much and he immediately began swearing and threatening to whip defendant unless he "took it back." Up to this point there was no conflict in the evidence. Some of the State's witnesses testified that Lovins struck defendant on the back with his hand and stated that defendant or he (Lovins) would get a whipping unless defendant took back what he had said. Defendant became angry and, drawing his revolver, threatened to shoot Lovins. Lovins continued to swear and make a disturbance, whereupon defendant proposed to one of the Walls boys that they procure clubs and beat Lovins to death. Lovins, according to the State's evidence, kept on quarrelling, swearing and challenging defendant to fight, until defendant shot him twice, the second shot producing almost instant death. The State's evidence further tends to prove that Lovins was entirely unarmed, and was only seeking a fist fight or ordinary battery with defendant.
After the shooting defendant walked to the home of Blankenship, two hundred yards away, put up the revolver and took down a shotgun and loaded it, and, on being asked by Blankenship what he was going to do replied: "Go back and kill every d -- d one of them." Blankenship took the gun away from defendant, and he then remained at Blankenship's until arrested some hours later. On the part of the defendant there was slight evidence of a secret plan between Walls, Sr., and Lovins to assault defendant.
Within a few minutes after...
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