State v. Reed

• Decision Date: 06 February 1900
• Citation: 55 S.W. 278,154 Mo. 122
• Parties: STATE v. REED.
• Court: Missouri Supreme Court

55 S.W. 278

154 Mo. 122

STATE v. REED.

Supreme Court of Missouri, Division No. 2.

February 6, 1900.

CRIMINAL LAW — HOMICIDE — EXCUSABLE HOMICIDE — INDICTMENT — INSTRUCTIONS — EXCEPTIONS.

1. Error of the trial court, not excepted to at the time, nor preserved in a motion for new trial and bill of exceptions, cannot be considered on appeal, though presented by affidavits incorporated in the bill of exceptions.

2. Though defendant's requests to charge in a criminal case were defective, he, having made such requests, is entitled to correct instructions on the subjects presented thereby.

3. An instruction on excusable homicide, which does not define the expressions, "in the heat of passion," or "upon a sudden provocation," is erroneous.

4. The owner or occupier of a store or place of business need not retreat, if assaulted therein, but may, after the refusal of the trespasser to leave upon request, employ such force, short of inflicting death, as may be necessary to remove him from the building, and, if death results from a blow given under such provocation, the killing may be reduced to manslaughter.

5. An instruction purporting to follow the language of Rev. St. § 3463, relating to excusable homicide "by accident, in the heat of passion, upon a sudden provocation, or upon sudden combat, without taking any undue advantage and

without using any dangerous weapon, and not in a cruel and unusual manner," is vitiated by the addition of the clause, "but insulting or offensive language, or a blow not made with a dangerous or deadly weapon, would not be a sufficient provocation to warrant defendant in taking deceased's life."

6. Where an indictment for homicide charged that death resulted from a blow of a pick, and several witnesses testified that death resulted from a fall on the pavement caused by a blow from defendant's fist, such evidence, if true, constituted a fatal variance; and hence defendant was entitled to an instruction that, if the jury found such evidence to be true, they should acquit, though there was evidence to the contrary.

Appeal from criminal court, Jackson county; D. W. Shackelford, Special Judge.

William H. Reed was convicted of murder, and he appeals. Reversed.

Blake L. Woodson and Ralph Latshaw, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

SHERWOOD, J.

To a charge made against defendant of murder in the first degree, the jury returned a verdict of murder in the second degree, assessing the punishment at its minimum, 10 years in the penitentiary. The story of the occurrence made the subject of indictment is substantially this: Defendant kept a secondhand store, where he bought, sold, and sometimes exchanged, such articles as are usually kept in such establishments. He was a man nearly 64 years of age, and wore glasses. Faulk, the other person mentioned in the indictment, was a laborer some 34 years old. He had been a frequent customer of defendant's, and for articles purchased had been given credits by defendant to the amount of small sums, and other little accommodations of that kind, from time to time, which, it seems, produced, in the end, the average yield of that crop called "gratitude." The latter part of June, 1898, Faulk bought a stove of defendant, and the latter agreed that he would allow Faulk three dollars on the purchase, to be paid with an old stove that Faulk had at home, provided it corresponded to the description which Faulk, in making the bargain, gave of it. So, Faulk took his purchase home with him, and the next day sent down to defendant's store the old stove aforesaid. This article, however, defendant soon discovered, did not answer its bargained description, — was, in short, almost, if not entirely, worthless. Upon this defendant wrote Faulk a note, notifying him of the difference between the stove and its description, and requested him to come around and arrange matters. Faulk answered this note in person along about 4 or 5 o'clock in the afternoon of June 30, 1898. Arriving there, Faulk and defendant went through the store to the back part to examine and talk over the dispute-producing stove. Having concluded their inspection, Faulk and defendant returned to the front part of the store, where the conversation was renewed about the stove, Faulk insisting that he should be allowed three dollars credit for the old stove, and, when defendant declined to do this, declared he would pay nothing; and, as he was in the condition that one witness terms "fighting drunk," became excited over the matter, called defendant a "son of a b___" and other vile names, struck and tried to choke him, and, when defendant ordered him out of the store, said, "I will leave when I get ready," and struck at defendant with his dinner pail, knocking his glasses off; when defendant, greatly excited by Faulk's insults and blows, in the endeavor to enforce his order, struck Faulk with his fist alone, and pushed him at the same time, and Faulk, with his face towards defendant, and his back to the front door close to which he was, fell backwards onto the asphalt sidewalk, and received such a wound on the protuberance or occipital bone as resulted in a fracture of that part of the skull, and his death in a few moments. Just at the outside of the front door was a lawn mower, chain, and a grubbing hoe and pick. The two last named, without handles, were lying on the sidewalk. Faulk's feet, as he backed out of the door, became entangled, and he fell over the lawn mower, breaking a portion of it off. The foregoing facts are testified to by Root, who was present in the store, right close by the contending parties; by Hayes, who stood on the sidewalk, only four feet wide, at the front door, and watched the controversy from its inception; and by defendant himself. As to what occurred in the store there is no dispute, certainly up to the time of the blow which defendant struck Faulk, which caused his fall out of the door; some of the witnesses for the state asserting that they saw this blow struck by defendant with an unhandled pick, on the back part of Faulk's head, while he was going out of the door, with his face to the street. Two physicians, the coroner and his deputy, stated the blow was given by some blunt instrument, and that it could not be done by a simple fall on an asphalt pavement. The question was not asked any witness, lay or professional, whether the fracture could not have been caused by Faulk's falling on the pick as it lay on the sidewalk.

In this case we are foreclosed, and with a strict foreclosure, from passing on the action of the trial court in relation to impaneling jurors, and as to giving time to defendant's counsel to consult together before introducing evidence on behalf of their client, since none of these matters were excepted to at the time of their occurrence, and such exceptions set forth in the motion for a new trial, and preserved in the bill of exceptions; and the fact that affidavits were made and incorporated in the bill of exceptions, in order to preserve the matters aforesaid, does not have any such preservative effect, as has been so often decided by his court. When the lawyers of this state will learn this simple rule of procedure is unknown. A few cases on the subject may not be unimpertinent. State v. Hayes, 81 Mo., loc. cit. 574; State v. Musick, 101 Mo. loc. cit. 273, 14 S. W. 215; State v. Brewer, 109 Mo., loc. cit. 652, 19 S. W. 97; State v. Blunt, 110 Mo., loc. cit. 340, 19 S. W. 655; State v. Howard, 118 Mo., loc. cit. 145, 24 S. W. 46 et seq.; City of Tarkio v. Cook, 120 Mo., loc. cit. 11, 25 S. W. 203.

But exceptions were saved by defendant to the giving of all of the state's instructions, and to the refusal to give certain instructions asked by him. The instructions on the part of the state, so far as necessary to quote them, are the following:

"(7) If you find from the evidence that the deceased went to the defendant's place of business, and that there a dispute arose between them, in which the deceased assaulted the defendant or used opprobrious epithets or threats towards him, then the defendant had the right to order and eject the deceased from said premises by whatever force or means were reasonably necessary, short of taking his life or doing him some serious bodily harm; and if the defendant, in lawfully ejecting him from said storehouse or place of business, killed him, without the use of any deadly weapon, and without taking any undue advantage of him, and without using any cruel and unusual manner towards him, then you must find the defendant not guilty.

"(8) If you find that the defendant, by accident, in a heat of passion, upon sudden or sufficient provocation, or upon sudden combat, without taking any undue advantage, and without using any dangerous weapon, and not in a cruel and unusual manner, killed John Faulk, you will acquit him; [but insulting or offensive language, or a blow not made with a dangerous or deadly weapon, would not be a sufficient provocation to warrant the defendant in taking the deceased's life.]"

"(15) If you find from the evidence that at the county of Jackson and state of Missouri, at any time within three years before the 17th day of October, 1898, the defendant, without intending to produce death, wrongfully killed John Faulk, by means neither cruel nor unusual, in a heat of passion, you will find him guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for not more than two years, or at imprisonment in the county jail not less than six months, or by a fine of not less than five hundred dollars ($500.00), or by both a fine of not less than one hundred dollars ($100.00) and imprisonment in the county jail not less than three months."

There were also instructions given on the same side as to murder in each degree. These quotations and statements are sufficient to show the theory on which the state tried the cause.

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