The State v. Hollingsworth
| Citation | 56 S.W. 1087,156 Mo. 178 |
| Parties | THE STATE v. HOLLINGSWORTH, Appellant |
| Decision Date | 08 May 1900 |
| Court | Missouri Supreme Court |
Appeal from Jackson County Criminal Court. -- Hon. John W. Wofford Judge.
Reversed and remanded.
Marcy K. Brown for appellant.
(1) Instruction numbered ten given for the State, constitutes reversible error. It is the exact counterpart of an instruction recently condemned by this court upon which alone, reversal was ordered. State v. Hudspeth, 150 Mo. 28. (2) Instruction numbered nine was clearly erroneous. "It imposed upon defendant the duty of determining, with absolute certainty, what force was necessary to be used in resisting the assault." State v. Harper, 149 Mo. 527; State v. Rose, 142 Mo. 428; State v Mathews, 148 Mo. 193; State v. Hudspeth, 150 Mo. 32; State v. Evans, 124 Mo. 410; State v. Adler, 146 Mo. 25. (3) Instruction numbered eleven which declares that "the burden of proof is upon the State" is erroneous, misleading and contradictory to other instructions. It is in the exact form as given in civil cases, and by it the jury were allowed to convict defendant, if, in their opinion, the proof merely preponderated in favor of the State. Mackin v. Peoples Ry. Co., 45 Mo.App. 87; Fletcher v. Milborn Mfg. Co., 35 Mo.App. 329; Clark v. Kitchen, 52 Mo. 316. (4) Instruction numbered four, for manslaughter in third degree, should not have been given. The evidence showed no involuntary killing, no opprobrious epithets used, no blow struck -- nothing to cause heat of passion, as technically recognized by the law necessary for manslaughter in the third degree, and as an actual fact, no heat of passion was engendered, and none existed. State v. Bulling, 105 Mo. 220; State v. Kotovsky, 74 Mo. 250; State v. Jones, 79 Mo. 441. If an instruction on manslaughter in the third degree is proper in this case, then it must be given in every case where self-defense is relied upon, a doctrine, not for a moment to be upheld. State v. Alexander, 66 Mo. 148; State v. Watson, 95 Mo. 415; State v. Edwards, 70 Mo. 480; State v. Dierberger, 96 Mo. 676; State v. Curtis, 70 Mo. 600; State v. Punshon, 124 Mo. 458.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The instructions given in this case are such as have often received the sanction of this court. They properly declare all the law in the case, and declare it correctly. All of the instructions offered by the defendant are very similar to those given; so near are they alike that there is no error in the action of the trial court in refusing them. When the court has given an instruction upon a question of law, another instruction declaring the same law, though couched in different words, is entirely out of place and should be refused. (2) It is not in the records that the trial court refused to instruct for manslaughter in the fourth degree. That question is first raised in the motion for a new trial, and can not now be used to secure a reversal of the case. The evidence or records do not show that such an instruction would have been proper. Sec. 3476, R. S. 1889; State v. Edwards, 70 Mo. 480; State v. Ellis, 74 Mo. 207; State v. McKenzie, 102 Mo. 620.
On the 17th of June, 1898, Elwood Hollingsworth, the defendant, was engaged in the dairy business near Kansas City. He rented the premises in which the homicide hereinafter mentioned took place, from Alex. Schwab. Defendant owned the stable building, having bought it from one George Etom. His lease secured to him the privilege of removing the building at the termination of his lease. It began March 1, 1897, and ran for one year at eight dollars per month, payable at the end of each month. At the expiration of the year this arrangement by mutual agreement continued and defendant had paid for March, April and May, 1898, and neither party had taken any steps to terminate the tenancy. Immediately west of defendant's stables, Schwab, the deceased, had erected stables for his cows, being a dairyman also. While these two stables joined each other, they were separate and distinct. The defendant owned his stable, and occupied it with his cows and feed. He had no rights in Schwab's stables, and Schwab had none in his. They had separate doors and openings, with a car track elevated above the floor between them. The doors of both stables for the cattle opened on the north side of the stables. About two months after leasing to defendant, Schwab made a further lease to Etom, and desired defendant to permit Etom to occupy defendant's stables with his cows. To this defendant would not agree, but said to Schwab that if he would refund him the two months' rent he had paid him, he would move out; that defendant and Etom could not get along in the space in defendant's stables. Schwab refused to refund and Etom found other quarters.
The evidence tended very clearly to show that this incensed Schwab toward defendant as by the arrangement with Etom, Schwab would have had his own stable rent free. To another dairyman, G. T. McGuire, Schwab declared his intention of putting defendant off the premises, and "would fix him so that they would have to carry him out." McGuire warned defendant of this threat, and Schwab's animosity toward him. A short time before the homicide, Schwab also said to Hampton, the street commissioner of Rosedale, that he intended to make defendant leave the place, and if he resisted "he would throw him against the fence and break every bone in his body." On several occasions, when under the influence of liquor, Schwab charged defendant with having "beat him out of the Etom rent by being a d---d crank;" that he "would get even with him for it yet."
On the day before the shooting, as defendant was driving home after delivering his milk, he came upon Schwab and another man in the public road. Schwab was quarreling with the man and it culminated in Schwab jerking the man out of his wagon and giving him a beating. Defendant shouted at Schwab not to kill the man, whereat Schwab stopped long enough to turn to defendant and say, "I'll give you some of the same medicine later on." Schwab was about thirty years old, weighed about 225 pounds, and was about six feet high. His reputation was that of a violent, high-tempered man. The defendant Hollingsworth was about twenty-eight years old, and weighed 138 pounds. The evidence tended to show that he was a peaceable man and of good reputation.
About two o'clock in the morning of June 17, 1898, the defendant went to his barn to feed and milk his cows, and Schwab's hired man, one John Kurmann, went to Schwab's barn to milk Schwab's cows. This was according to the usual custom of both. As already stated, the cow entrances to both stables were on the north of the respective stables, and each had its separate entrance. Kurmann arrived at the stables in advance of defendant. When the defendant reached his stable, he found that Kurmann instead of admitting Schwab's cows into his stable by the north door was bringing them in through defendant's feed room, and thence into Schwab's stables. He complained to Kurmann and objected to his admitting the cows through that way. Whereupon Kurmann replied that "it was none of his [defendant's] d---d business, and if he didn't keep his mouth shut he would throw him out of there."
Defendant said nothing further just then, but went on letting in his own cows to their stalls, preparatory to milking. Several of the cows remaining in the lot, defendant started out the south way to head them off and drive them in at the north door. On reaching the feed room he found Kurmann had again turned one of Schwab's cows into the feed room of defendant, and the cow was eating and tramping on defendant's feed, and Kurmann was standing as if waiting to see what defendant would do. Up to this point, there is little discrepancy, but Kurmann and defendant differ radically as to what occurred then.
Kurmann testified that defendant said "You s -- n of a bi -- h, I will put a hole through you," and thereupon he left to bring Schwab down to settle the difficulty. The defendant on the other hand, says he said to Kurmann, "I have told you once to keep the cows out of my feed; they have already done enough damage."
It seems Kurmann shared the dislike of defendant which his master entertained, and angered at the reproof of defendant he made a rush at him and struck at him twice, but defendant warded off and got away from him. Kurmann followed him, however, saying, "You d---d Americans can run over the Spanish, but you can't run over us," alluding to the fact that he and Schwab were Sweitzer Germans. He turned suddenly and left, going toward the house, angrily threatening defendant that he was going to get Schwab and they would throw him out of there and "cut his d---d throat."
Defendant testified that knowing the ill will of Schwab and his temper and great strength, he became alarmed. He knew he was no match for the two, and feared that they would return and beat if not kill him. The dairies were isolated, on an untraveled country road on the Kansas line. No neighbors lived near except two shanties occupied by German Sweitzers, who naturally would side with his antagonists. He lived alone in a one room shanty near the stables. He had a pistol in his house, and he concluded to go there, but after reaching the house he says he concluded they might follow him, and if they did he would be penned up, so he came out. After a while, hearing nothing, he thought perhaps Schwab would not come down. He determined to put the pistol in his pocket, thinking he could keep them off if they assaulted him. Hearing a noise among his cows, he hurried back to his stables, fearing that a vicious cow he had was...
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