4 S.W. 742 (Mo. 1887), State v. Hicks

Citation:4 S.W. 742, 92 Mo. 431
Opinion Judge:Norton, C. J.
Party Name:The State v. Hicks, Appellant
Attorney:E. A. Seay and O. H. Travers for appellant. B. G. Boone, Attorney General, and V. M. Hines for the state.
Judge Panel:Norton, C. J. Ray, J.; Black, J., files a separate concurring opinion; Brace and Sherwood, JJ., dissent. Black
Case Date:June 06, 1887
Court:Supreme Court of Missouri

Page 742

4 S.W. 742 (Mo. 1887)

92 Mo. 431

The State


Hicks, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Texas Circuit Court. -- Hon. C. C. Bland, Judge.


E. A. Seay and O. H. Travers for appellant.

The verdict is not sustained by the testimony, and the judgment should be reversed. Instruction number ten is clearly not the law. It assumes that defendant invited or brought on the difficulty. Defendant had a right to arm himself. The deceased had threatened him and the nature of the threats had been communicated to defendant. It is evident from the testimony that it was the intention of deceased to provoke a difficulty with defendant and there is absolutely no testimony that defendant invited the difficulty, or put himself in the way of the deceased. State v. Sloan, 47 Mo. 604. Deceased threatened to kill defendant at various times. He threatened him on the day of the killing. Defendant was aware of these threats. It was not required that defendant should wait till the deceased made an actual assault upon him. The purpose of deceased could have been ascertained by defendant from the actions of deceased, and defendant could determine the purpose of deceased by conduct falling short of personal violence. State v. Eaton, 75 Mo. 593. There was no testimony warranting the giving of instruction number five on behalf of the state. There was no basis for it. The prosecuting attorney in his argument told the jury it was intended to destroy the testimony of Hicks' bartender. State v. Palmer, 88 Mo. 568. By authority of the last cited case, instruction number four, asked for by defendant, should have been given.

B. G. Boone, Attorney General, and V. M. Hines for the state.

(1) The fifth instruction is as to the weight of the evidence and the credibility of witnesses, and has uniformly received the approval of this court. State v. Kelley, 73 Mo. 608; State v. McGinnis, 76 Mo. 328; State v. Wisdom, 84 Mo. 190; State v. Thomas, 78 Mo. 341; State v. Gee, 85 Mo. 647. (2) The seventh instruction for the state properly declared the law, and was applicable to this case, because defendant introduced witnesses to prove what defendant had said about the difficulty several days after its occurrence. State v. Green, 13 Mo. 392; State v. Bryant, 55 Mo. 77; State v. Ware, 62 Mo. 597; State v. Evans, 65 Mo. 579; State v. Christian, 66 Mo. 138; State v. Halcomb, 86 Mo. 378. (3) The tenth instruction covers every phase of the doctrine of self-defence applicable to this case, under the evidence, and in the same language here used, has been approved by this court. Vide instruction number seven in State v. Thomas, 78 Mo. 339. (4) The instructions asked by defendant and refused, numbered from one to eight inclusive, are, in the main, incorrect and improper declarations of law, or repetitions of instructions already given. For these reasons they were properly refused. It will appear, from an inspection of the instructions, that the law was fully and clearly declared upon every phase of the case presented by the evidence. (5) As to the alleged improper remarks of the prosecuting attorney and one John D. Young, who assisted in the prosecution, it is sufficient to say that, if error, the attention of the trial court was not called to them at the time, nor was any objection made before the filing of the motion for a new trial. It is too late to make such objections for the first time in the motion for a new trial. State v. Forsythe, 89 Mo. 667. The rule is the same in criminal as in civil cases, as to mere matters of exception. R. S., sec. 1921. To entitle defendant's complaint to a consideration he should have made and preserved objections to the remarks at the time, as well as put it in his motion for a new trial. State v. McDonald, 85 Mo. 539, and cas. cit. Besides, the remarks alleged to have...

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