The State v. Rennison

• Decision Date: 31 December 1924
• Docket Number: 25610
• Parties: THE STATE v. RUPERT RENNISON and CHARLES RENNISON, Appellants
• Court: Missouri Supreme Court

267 S.W. 850

306 Mo. 473

THE STATE v. RUPERT RENNISON and CHARLES RENNISON, Appellants

No. 25610

Supreme Court of Missouri

December 31, 1924

Appeal from Lafayette Circuit Court; Hon. Robert M Reynolds, Judge.

Reversed and remanded.

W D. Steele, W. H. Meschede, A. L. Shortridge, W. V. Draffen Aull & Aull and D. E. Kennedy for appellants.

(1) Instruction 8 given on behalf of the State is erroneous and prejudicial, for the reason that it is in conflict with Sec. 3233, R. S. 1919, in that it assumes that Rupert Rennison had no right to interfere when Jobe assaulted his father. State v. Hickam, 95 Mo. 322; State v. Turner, 246 Mo. 598; State v. Sinclair, 250 Mo. 278. (2) Instruction 8 is erroneous for the reason that it is unreasonable and improperly restricted defendant Rupert Rennison's right of self-defense; and further that it attempts to limit defendant's right of self-defense by erroneously attempting to define the right of attack. State v. Mathews, 148 Mo. 185; State v. Goodwin, 271 Mo. 73; State v. Partlow, 90 Mo. 608; State v. Bartlett, 170 Mo. 658; State v. Gordon, 191 Mo. 114; State v. Rapp, 142 Mo. 443; State v. Banks, 258 Mo. 479; State v. Hollingsworth, 156 Mo. 178; State v. Hopkins, 280 Mo. 388; State v. Roberts, 280 Mo. 669; State v. Creed, 299 Mo. 307. (3) The court erred in failing to instruct the jury on defendant Rupert Rennison's imperfect right of self-defense, based on the testimony on behalf of defendants. State v. Creed, 299 Mo. 307; State v. Kretschner, 232 Mo. 29; State v. Gordon, 191 Mo. 114; State v. Patterson, 159 Mo. 560; State v. Mathews, 148 Mo. 185; State v. Partlow, 90 Mo. 608. (4) The court erred in permitting the State, over the objections of the defendants, to exhibit the clothing worn by the deceased at the time of his death. State v. McAfee, 248 Mo. 379; State v. Porter, 276 Mo. 396; State v. Creed, 299 Mo. 307. (5) The court erred in not defining "heat of passion," "reasonable provocation," "lawful provocation." State v. Corwin, 266 Mo. 90; State v. Skaggs, 159 Mo. 581; State v. Reed, 154 Mo. 129; State v. Strong, 153 Mo. 555.

Jesse W. Barrett, Attorney-General, and William L. Vandeventer, Special Assistant Attorney-General, for respondent.

(1) An erroneous instruction on manslaughter is not error where defendant was convicted of murder in second degree, where there was no manslaughter in the case. State v. Baker, 246 Mo. 375; State v. Privitt, 175 Mo. 231; State v. Dunn, 80 Mo. 681, 693; State v. Snead, 259 Mo. 432. Where defendant is entitled to a manslaughter instruction it must be correct. State v. Little, 228 Mo. 273. (2) An instruction on manslaughter was necessary. Injury to a relative in the presence of accused may constitute adequate provocation. 29 Corpus Juris, Homicide, sec. 124; Alexander v. State, 118 Ga. 26; State v. Turner, 246 Mo. 598, 611. (3) Rupert Rennison was entitled to an instruction on the right of self-defense in protecting his father. State v. Turner, 246 Mo. 598, 610; State v. Eastham, 240 Mo. 241; State v. Foley, 12 Mo.App. 431; State v. Burns, 278 Mo. 441. (4) Defendant was entitled to an instruction on the imperfect right of self-defense. State v. Creed, 252 S.W. 678. (5) The bloody clothing worn by deceased at the time of his death was improperly admitted in evidence. State v. Creed, 299 Mo. 307; State v. Porter, 276 Mo. 396. (6) Instruction 8 was erroneous in that it told the jury that: "the right of self-defense does not imply the right of attack." State v. Ball, 262 S.W. 1045.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

On September 18, 1922, the Prosecuting Attorney of Saline County filed an information in the circuit court of said county, charging that "one Rupert Rennison and Charles Rennison, on the 21st day of May, 1922, at said County of Saline, in the State of Missouri, did, then and there unlawfully, in and upon one William Jobe, then and there being, feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought, make an assault, and with a deadly weapon, to-wit, a pistol, then and there loaded with gun powder and leaden balls, which the said Rupert Rennison then and there had and held, did then and there feloniously, on purpose and of their malice aforethought, wilfully, deliberately and premeditatedly shoot and strike him, the said William Jobe, then and there with the deadly weapon, to-wit, the pistol aforesaid and the gun powder and leaden balls aforesaid, giving to him, the said William Jobe, one mortal wound of which said mortal wound the said William Jobe then and there died, against the peace and dignity of the State."

This was signed and duly verified by the prosecuting attorney. A change of venue was thereafter awarded to the Circuit Court of Lafayette County, and the case was tried at the April term, 1923, of said court. The jury found each of the defendants guilty of murder in the second degree, and assessed the punishment of Charles Rennison at ten years' imprisonment in the penitentiary and that of Rupert Rennison at twenty years. After motions for new trial and in arrest were overruled, the defendants were duly sentenced and appealed therefrom.

The evidence for the State tends to prove that William Jobe, a brother of Charles Rennison's wife, and C. C. Campbell went to the residence of appellants in the south part of Saline County, on Sunday, May 21, 1922, arriving there at about noon. Appellants were not at home. Jobe and Campbell ate dinner with the family, and about the time the meal was finished Charles Rennison and his son Rupert and Frank York drove up in the Rennison automobile and stopped in the public road. Appellants and York went to the barn, and Jobe and Campbell went out to the automobile. Ed. Rennison, another son of Charles Rennison, came to the car and was introduced to Campbell by Mr. Jobe. At this time the appellants were sitting in the doorway of the barn, a hundred feet or more distant from the automobile. Rupert called to Mr. Jobe to come to the barn; called him twice, and, accordingly, Jobe went to the barn Rupert said to Jobe: "You have my still." Jobe said he had not. Rupert "told him he knowed he had it up there in the upstairs of his house and Jobe said he didn't, to go and see for himself." Rupert called Jobe vile names and struck at him three times. Jobe stepped back, saying there was no use in having any trouble. Charles Rennison then struck several blows at Jobe and Jobe knocked him down. Charles Rennison said to Rupert, "Put it to the s -- o -- b -- ; shoot him." Thereupon Rupert shot Jobe twice in quick succession. Jobe went into the barn, where he was found dead, lying on the floor. He was forty-seven years of age. There were two gun-shot wounds, one near the left nipple, the other four or five inches below it.

The evidence for the defense, as summarized in the statement and brief of the Attorney-General, is: "The evidence for the appellants tended to show that they did not invite the deceased to come up to the barn; that he came up there of his own volition, started the trouble himself, knocked Charley Rennison down and was standing over him with a drawn revolver, kicking him; that Rupert Rennison asked him to desist, whereupon deceased fired a shot at Rupert Rennison, who immediately shot deceased twice, which shots resulted in his death; that the shots of Rupert Rennison were fired in self-defense."

The sufficiency of the information is challenged by the motions in arrest.

I. It has been uniformly held in this State that it is the formal conclusion of an indictment or information for murder that distinguishes it from manslaughter. In State v. Dawson, 187 Mo. 60, 64, 85 S.W. 526, Judge Burgess, speaking for the court, in Banc, said:

"The first point presented for our consideration on this appeal is with respect to the sufficiency of the information, which defendant claims is bad because it does not conclude as required in case of homicide prosecuted by indictment. The information concludes as follows: 'And so the said James P. Boyd, prosecuting attorney of and within and for the County of Monroe and State of Missouri as aforesaid, does inform the court aforesaid, that he the said Frank Dawaon her, the said Anna Hartman, in the manner and by the means aforesaid, feloniously, wilfully, premediatedly, deliberately, on purpose and of his malice aforethought, at and in the said County of Monroe and State of Missouri, on the said fourth day of December A. D. 1903, did kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State,' but omits to allege that the said James P. Boyd, prosecuting attorney of and within and for the County of Monroe and State of Missouri as aforesaid, 'upon his oath aforesaid,' does inform the court aforesaid, etc.

"The contention is that the crime charged in the information is nothing more than manslaughter. In the case of State v. Meyers, 99 Mo. 107, it is held that the conclusion of a count of an indictment for murder is just as essential as other portions of the count, and the concluding charge in such case should be by the grand jurors upon their oaths; otherwise, the previous words of the indictment will charge only manslaughter.

"The same rule is announced in State v. Furgerson, 152 Mo. 92; State v. Sanders, 158 Mo. 610.

"In State v. Cook and Frogge, 170 Mo. 210, Gantt, J., speaking for the court, said:

"'The indictment is not sufficient to sustain a conviction of murder. The indictment only charges manslaughter. As was ruled in State v. Sanders, 158 Mo. l. c. 612, an indictment under our Constitution means just what it did at common law. [Ex parte Slater, 72 Mo. 102; State v Meyers, 99 Mo. 116.] At common law it was essential to an...