State v. Talmage

• Decision Date: 22 December 1891
• Citation: 107 Mo. 543,17 S.W. 990
• Court: Missouri Supreme Court
• Parties: STATE v. TALMAGE.

17 S.W. 990

107 Mo. 543

STATE v. TALMAGE.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

HOMICIDE — MURDER — ELECTION — CHALLENGES — INSTRUCTIONS — MANSLAUGHTER — EVIDENCE.

1. Under Rev. St. 1889, § 3949, which provides that upon indictment for any offense consisting of different degrees the jury may find the accused not guilty of the offense charged, and may find him guilty of any inferior degree of such offense, a person indicted for murder in the first degree may, by permission of the court, be prosecuted for murder in the second degree alone.

2. Under Rev. St. 1889, § 4200, which allows a defendant charged with an offense punishable by death or imprisonment 20 peremptory challenges, and a defendant charged with an offense punishable by imprisonment alone not more than 12 peremptory challenges, a defendant indicted for murder in the first degree, but only tried for murder in the second degree, is only entitled to 12 challenges, since murder in the second degree is not punishable with death.

3. It is not reversible error to instruct the jury that, "if you have a reasonable doubt of the defendant's guilt, you must acquit him, but a doubt, to authorize an acquittal, must be a substantial doubt, arising from the insufficiency of the evidence, and not a mere possibility of his innocence," where the jury are told in another instruction that "a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge."

4. Upon trial for murder, the evidence showed that defendant was a railway conductor, and the deceased a telegraph operator; that defendant came into the office where deceased was in order to receive his orders; that defendant called deceased a fool, and repeated the remark after deceased had resented it; that an abusive altercation ensued, followed by a fist fight, in which the defendant was worsted; that while defendant was being held down by deceased he drew his pistol, and fired the fatal shot; and that, when defendant entered the room, he had on his overcoat and one glove, having his other glove and a lantern in the other hand. Deceased and defendant were about equally matched physically. The first assault was made by deceased. Defendant testified that he had no thought of using his pistol until his hand accidentally touched it during the struggle. Held reversible error to refuse to instruct the jury on the law of manslaughter. THOMAS, J., dissenting.

5. Where a witness testifies as to a conversation between himself and the defendant in regard to the homicide immediately after it occurred, it is proper to allow him to state what he said to the defendant, where such evidence is necessary in order to make clear the statements made by the defendant in such conversation.

6. Where defendant provoked the fatal quarrel, and shot the deceased while the latter was only assaulting him with his fists, evidence tending to show that the deceased was a practiced boxer is inadmissible in defense.

Appeal from circuit court, Chariton county; G. D. BURGESS, Judge.

Indictment of James C. Talmage for murder. Defendant was found guilty, and appeals. Reversed.

Rev. St. Mo. 1889, § 3949, cited in the opinion, provides that upon indictment for any offense consisting of different degrees the jury may find the accused not guilty of the offense charged, and may find him guilty of any inferior degree of such offense. Rev. St. Mo. 1889, § 4200, cited in the opinion, provides that the defendant in criminal cases shall be entitled to 20 peremptory challenges if the offense charged is punishable with death or imprisonment, and to only 12 peremptory challenges if the offense is punishable by imprisonment for not less than a specified number of years.

H. S. Priest, Jos. S. Laurie, Sam. C. Major, and Kinley & Wallace, for appellant. J. M. Wood, Atty. Gen., (W. W. Rucker and W. S. Stockwell, of counsel,) for the State.

THOMAS, J.

The defendant was sentenced by the circuit court of Chariton county, in October, 1889, to imprisonment in the penitentiary for 10 years for murder of the second degree, and the case is here on his appeal.

1. The defendant was indicted for murder of the first degree, but the state, by permission of the court, elected to prosecute and did prosecute him for murder of the second degree alone. The defendant interposed an objection to this course, which being overruled, he excepted, and now assigns it for error. This contention is not maintainable. The state had a clear right to take this course, and defendant has no right to complain that the state chose to prosecute him for a less, and not the higher, grade of homicide. Sections 3949, 4115, Rev. St. 1889; State v. Lowe, 93 Mo. 547, 5 S. W. Rep. 889; State v. Keeland, 90 Mo. 337, 2 S. W. Rep. 442; State v. Nelson, 88 Mo. 126; State v. Wagner, 78 Mo. 644; State v. Burk, 89 Mo. 635, 2 S. W. Rep. 10; Com. v. Dean, 109 Mass. 349; Jennings v. Com., 105 Mass. 586; Baker v. State, 12 Ohio St. 214; Com. v. Tuck, 20 Pick. 356; 1 Bish. Crim. Proc. §§ 1387-1396. The defendant having been prosecuted for an offense punishable by imprisonment in the penitentiary for a term of not less than 10 years, it follows that he was entitled to only 12, and not 20, challenges. Section 4200, Rev. St. 1889. Hence there was no error in refusing to allow him 20 challenges.

2. It is claimed that the court erred in its definition of "reasonable doubt." By the first instruction given at the instance of the state the court told the jury "that the law presumes that the defendant in this case is innocent of the offense charged, and before you can convict him the state must overcome that presumption by proving him guilty beyond a reasonable doubt. If you have a reasonable doubt of the defendant's guilt you must acquit him, but a doubt, to authorize an acquittal, must be a substantial doubt, arising from the insufficiency of the evidence, and not a mere possibility of his innocence." The objection to this instruction is that it limits reasonable doubt to mere insufficiency of the evidence. While we do not approve the phraseology of this instruction as the best that could be employed to define reasonable doubt, we do not see how it could have misled the jury. This objection is too hypercritical. It seems to the ordinary mind that a doubt arising from the insufficiency of the evidence is the same as a doubt arising upon a full and fair review of all the evidence in the cause. We will pause here to remark that lawyers and judges are prone to depart from the accustomed definition of "reasonable doubt," and to seek a clearer statement by new definitions; but we think it will be found on a critical, philosophical examination of the question that the later attempts at the definition of "reasonable doubt" have not given it perspicuity, nor added to the facility of comprehending it. In the nature of things, it must be left largely to the triers of the fact. Reasonable doubt is reasonable doubt, and that is about all that can be said in regard to it. It has been uniformly held in this state that if, upon a fair and full review of all the evidence in the cause, the jury entertain a reasonable doubt of defendant's guilt, they would give him the benefit of it, and acquit him; but such doubt, to authorize an acquittal on that ground alone, should be a substantial doubt touching his guilt, and not a mere possibility of his innocence, and, if the trial courts would adopt the approved formula, criticism would be avoided, and this court would not be called upon so often to discriminate between words having nice shades of meaning. But the court did not stop here. The defendant asked the court to give, and the court did give, the following instructions: "(5) The court instructs the jury that the law presumes the defendant innocent in this case, and not guilty, as charged in the indictment; and that they should act on this presumption, and acquit the defendant, unless the state of evidence satisfies them of his guilt beyond a reasonable doubt. (6) The jury are instructed that a reasonable doubt of the guilt of a person on trial for a criminal offense is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge, — a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it." Taking these, with the one given at the instance of the state, the question of reasonable doubt was presented to the jury in as clear a light as is practicable in the existing state of written language. The presentation of the question was certainly as favorable to defendant as the law authorizes.

3. This brings us to the consideration of the main grounds urged for a reversal of this sentence, which are that the court erred in failing to instruct the jury that they might find defendant guilty of involuntary manslaughter, and in its instructions in regard to self-defense. In order to dispose of these questions intelligently it will be necessary to give the salient facts. The defendant shot and killed Charles P. Tidd in the telegraph office at Brunswick, Chariton county, Mo., on the 9th day of January, 1888, at about half-past 7 o'clock, P. M. Tidd was 26 years old, and defendant 18. They weighed about the same; Tidd being the tallest, but defendant was broader across the shoulders. The depot of the Wabash Railway at Brunswick had three rooms; the telegraph office being the middle one, the ladies' waiting-room being on the south, and the gents' waiting-room on the north. The telegraph office was about 15 by 20 feet, the long way being...