The State v. Cable

Decision Date27 June 1893
Citation22 S.W. 953,117 Mo. 380
PartiesThe State v. Cable, Appellant
CourtMissouri Supreme Court

Appeal from Morgan Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

D. E Wray and Draffen & Williams for appellant.

The court committed error in giving the first instruction asked by the state. The defendant had the right, even though he had voluntarily engaged in a difficulty, to withdraw from the combat, and if he did so in good faith, "and was pursued by the deceased, and was hard pressed, and was endeavoring to get away from the deceased, and to abandon the combat," then he was not deprived of the right of self-defense, and there was manifest error in the declaration of the court to the contrary. It is "the well-settled doctrine that though a man should be wrong in the first instance, yet 'a space for repentance is always open,' and where a combatant, in good faith, withdraws, as far as he can, really intending to abandon the conflict, and his adversary still pursues him, then if taking life becomes necessary to save his own, he will be justified." State v Partlow, 90 Mo. 608; Stoffer v. State, 15 Ohio St. 47; Kelley's Criminal Law, sec. 488; 1 Bishop's Criminal Law [5 Ed.], sec. 871. (2) The error of the court in giving the instruction, telling the jury that the defendant was deprived of the right of self-defense, if he voluntarily engaged in the difficulty, notwithstanding he had abandoned it before the shooting, and was pursued by the deceased, and was hard pressed at the time he fired the fatal shot, is not cured by the counter-instruction given at the instance of defendant. The instructions were contradictory, and it cannot be known by which the jury was governed. "An erroneous instruction is not remedied by the giving of a correct instruction which is inconsistent and irreconcilable therewith." State v. Herrell, 97 Mo. 105; Bluedorn v. Railroad, 108 Mo. 439; State v Clevenger, 25 Mo.App. 653.

R. F. Walker, Attorney General, for the state.

The first instruction for the state correctly told the jury that if the defendant sought, provoked or brought on, or voluntarily entered into, the difficulty with the deceased, which resulted in the killing of Fitts by defendant, then they could not acquit on the ground of self-defense. State v. Parker, 106 Mo. 223. Second, third and fourth relate to, and define, murder in the second degree; defendant having been convicted of manslaughter in the fourth degree will not be heard to complain of these instructions, whether they be right or wrong. State v. Talbot, 73 Mo. 358. By the fifth instruction given for defendant he had a right to act upon appearances as presented to him at the time, and that if he used no more force than to him appeared to be necessary, then they should find him not guilty, even though the jury might believe that defendant was in no immediate danger. The instructions when read together clearly and fairly present every phase of the case suggested by the testimony. They are extremely liberal to the defendant in defining, upon his theory and the testimony offered by him, his right of self-defense. He could not have been prejudiced by any of these instructions; on the other hand they were doubtless more responsible for the verdict of manslaughter than was the testimony, which presented a case of murder in the first or second degree.

OPINION

Burgess, J.

-- The defendant was indicted for murder in the first degree, for the killing of Emmett Fitts. When the cause came on to be heard, at the August term, 1892, the state elected to abandon the charge of murder in the first degree, and to proceed against the defendant for murder in the second degree.

A number of witnesses were introduced both by the state and the defendant. There were differences between the witnesses as to the details of the difficulty.

There was evidence before the jury tending to establish the following facts:

That there was a picnic near Gravois Mill, on the eighth of August, 1890, which the defendant and deceased attended. A platform had been built for dancing, and upon one end there was a seat for the musicians; one, George White, and the deceased were furnishing the music; the defendant came up to where they were and engaged in conversation with White, who was an old acquaintance; the deceased took part, and in a short time angry words passed between deceased and defendant. When the quarrel between them had about subsided, George Fitts, a brother of the deceased, came up and said that if there was any fighting to be done he would do it himself, and thereupon the deceased announced that "he was a sure cat himself," and started to rise; the defendant struck him, and, about the same time, he struck defendant with a banjo that he held in his hand; George Fitts also struck the defendant, and he was knocked down; he attempted to rise and was again knocked down.

Deceased his brother, and defendant, in some manner got off the platform. State's witnesses say that they went off; defendant testifies that he was knocked off. Defendant went off the south side of the platform, ran to the northeast corner, drew his pistol from his inside vest pocket and fired at Emmett Fitts, shooting him in the right breast, from which wound he died on the twelfth day of August. State's witnesses testify that Fitts was standing still about twenty feet from the defendant when the shot was fired. Defendant contended that Fitts was advancing upon him; that he ran around inside of the platform, and the deceased ran after him; that he was almost out of breath, was worn out, and could not run further; that he saw another brother of...

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