State v. Parker

• Decision Date: 30 June 1891
• Citation: 106 Mo. 217,17 S.W. 180
• Parties: STATE v. PARKER.
• Court: Missouri Supreme Court

17 S.W. 180

106 Mo. 217

STATE v. PARKER.

Supreme Court of Missouri, Division No. 2.

June 30, 1891.

CONTINUANCE — ABSENCE OF COUNSEL — JUSTIFIABLE HOMICIDE — SELF-DEFENSE — INSTRUCTIONS.

1. Defendant had twice been tried, and a conviction of murder in the second degree had been reversed on appeal. Eight days before the third trial he applied for a continuance, on the ground that his previous counsel, on account of other important business, were unable to attend to his defense; that a week previously he had employed another attorney, who was ill, and unable to attend to the case, and that it was too late for another lawyer to prepare for the trial. Four days before the trial the partner of said attorney requested a postponement for two weeks. At the trial defendant was represented by both these attorneys, who were men of distinguished ability. Held insufficient to show an abuse of discretion by the trial judge in refusing a continuance.

2. On a murder trial, where the plea was self-defense, the court charged that, if defendant brought on the difficulty, and in so doing was actuated by a felonious intent to kill deceased, or to do him great bodily harm, and during the difficulty did kill him, the jury could not acquit on the ground of self-defense; but, "although the jury believe * * * that the defendant began the quarrel, * * * yet if they also believe * * * that this was done by defendant without any felonious purpose, and that thereupon the deceased attacked him, and compelled him, in order to save his own life, to take that of the deceased, still the law, while it will not entirely justify the homicide on the ground of self-defense, will hold the defendant guilty of no higher grade of crime than that of manslaughter in the fourth degree. The word `felonious,' as used in this instruction, means wickedly and against the admonition of the law, — unlawfully." Held, that this instruction fully and fairly stated the law of self-defense.

3. The definition of the word "felonious" in the above charge was correct.

4. Rev. St. Mo. 1889, § 3462, provides that homicide shall be deemed justifiable when committed by any person in his own defense, when there shall be "reasonable cause" to apprehend a design to commit a felony, or to do some great personal injury, and an immediate danger of such design being accomplished. Held, that homicide was not justifiable, though defendant really thought he was in danger, unless he had "reasonable cause" for his belief.

5. Instructions asked on the theory that defendant killed deceased in the necessary defense of his son, were properly refused, when there was no evidence that his son was assaulted or attacked by deceased.

6. The refusal of the trial court to grant a continuance to allow defendant, convicted of murder in the second degree, to incorporate all the evidence in his bill of exceptions, was not error where he had had two weeks, pending a motion for new trial, in which to do so, and it did not appear from the record that he was prejudiced.

Appeal from criminal court, Buchanan county; CYRUS A. ANTHONY, Judge.

H. S. Kelley, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

This is the second appeal of defendant from a conviction for murder in the second degree for killing Davis C. Montgomery. The first appeal is reported in 96 Mo. 383, 9 S. W. Rep. 728. The case was retried with the same result as upon the first trial. The plea was again self-defense. A number of errors are assigned which will be considered in their order.

1. Defendant's first complaint is that the court improperly refused to grant him a continuance. The ground of the application was that the attorneys who had attended to his defense on all former trials, and in the supreme court, and who were familiar with all the facts, were unable to attend to his defense on account of the press of other important business. On the 11th of March he employed another attorney, J. S. Crosley, who was then sick, but thought he would be well in time to prepare for trial. That his attorney so employed had not sufficiently recovered to attend to his case, and he could not now secure the services of counsel who could prepare for and proceed with the trial at that term of court. The application was made on the 18th day of March, 1889, and overruled. On the 22d of March Hon. H. S. Kelley, a partner of Crosley, appeared for defendant, and requested a postponement for two weeks, which was also denied. On the 26th the trial was commenced, Hon. H. S. Kelley and J. S. Crosley appearing for defendant, though the latter was still in delicate health. The granting or refusing a continuance, particularly for causes not enumerated in the statute, is largely a matter within the discretion of the circuit court, and nothing but its abuse will warrant this court in interfering with its exercise. "When a party seeks to substitute the discretion of this court for that of the court below, and to give relief under circumstances which, in the discretion of that court, do not entitle him to it, he must present a strong case." SCOTT, J., in Jacob v. McLean, 24 Mo. 40. See, also, State v. Maguire, 69 Mo. 198; State v. Walker, Id. 274; Greer v. Parker, 85 Mo. 107; State v. Griffith, 63 Mo. 545; State v. Bailey, 94 Mo. 313, 7 S. W. Rep. 425. We can see no arbitrary or unreasonable exercise of the discretion of the court in denying a continuance on the grounds alleged in the application. There had already been two jury trials of the case, in one of which, at least, the evidence had been preserved by bill of exceptions. The questions of law had been mostly settled by the decision of this court in the former appeal. But little time was, therefore, required in which to get a full understanding of the case. The application was made on the 18th of March, and the trial was not commenced until the 26th of the same month. Defendant was represented in the trial by counsel of great experience and distinguished ability. Nothing prejudicial to defendant on account of the denial of the continuance appears. No sufficient cause is shown for our interference with the discretion of the trial court.

2. Defendant next objects to the seventh instruction given by the court. This instruction tells the jury, in substance, if defendant brought on the difficulty, and in so doing was actuated by a felonious intent to kill deceased, or to do Lim some great bodily harm, and during the progress of said difficulty did shoot and kill him, then the jury cannot acquit on the ground of self-defense. To this the court adds the following: "But, although the jury believe from the evidence that the defendant began the quarrel or provoked the difficulty with the deceased, yet if they also believe from the evidence that this was done by defendant without any felonious purpose, and that thereupon the deceased attacked him, and compelled him, in order to save his own life, to take that of the deceased, still the law, while it will not entirely justify the homicide on the ground of self-defense, will hold the defendant guilty of no higher grade of crime...