31 Mo. 389 (Mo. 1861), State v. O'Connor

Citation:31 Mo. 389
Opinion Judge:EWING, Judge.
Party Name:THE STATE, Respondent, v. O'CONNOR, Appellant.
Attorney:Spratt & Merryman, for appellant. Knott, (attorney general,) for the state.
Judge Panel:Judge Napton concurring. Judge Scott absent.
Court:Supreme Court of Missouri
 
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Page 389

31 Mo. 389 (Mo. 1861)

THE STATE, Respondent,

v.

O'CONNOR, Appellant.

Supreme Court of Missouri.

January Term, 1861

1. Evidence of the general good character of the defendant, restricted to the trait of character in issue, is admissible in all criminal trials.

2. To justify a homicide, the defendant must have reasonable cause to apprehend immediate danger. It is not sufficient that he may think so. Good grounds for such apprehension must be made to appear to the jury.

Appeal from Platte Circuit Court.

These are the instructions asked by the defendant and refused by the court: " 3. That if they believe that defendant had cause to believe that his life was in danger, or that great bodily harm was about to be inflicted by the deceased, and acted under that belief at that time, the law is for the defendant, if the jury believe that defendant acted under that belief at the time, and that he stabbed Powel in order to save his own life. 5. If the jury believe from the evidence that the defendant requested said defendant to leave his house, and that deceased refused to leave, and persisted in following up O'Connor in his own house, then O'Connor had a right to use such force as was necessary to expel him from the house, and if the deceased came to his death by any such means used by O'Connor, they will acquit. 6. If the jury believe that O'Connor stabbed the deceased in protecting either his person or his property, they will acquit."

Spratt & Merryman, for appellant.

I. The instruction given by the court tells the jury, in substance, that the defendant had no legal right to defend his person or property, unless Oser, the deceased, intended to commit a felony on his person or in his dwelling, & c., & c. This, we submit, is not the law. All homicide, when unavoidably committed in the defense of one's person, dwelling, & c., against a trespasser is excusable. The law makes no distinction between a trespasser and a felon. We have the same right to defend our person and property against the one as the other, yet this judge tells the jury that they must believe that Oser, the deceased, intended to commit a felony, before the defendant was justified in defending his person or property. (3 Greenl. Ev. § 117; Russ. on Crimes, p. 662, 664.) These instructions also leave the jury to be the judges of what it takes to constitute felony.

II. The court also erred...

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