State v. Lockett

• Decision Date: 13 May 1902
• Citation: 168 Mo. 480,68 S.W. 563
• Parties: STATE v. LOCKETT.
• Court: Missouri Supreme Court

68 S.W. 563

168 Mo. 480

STATE v. LOCKETT.

Supreme Court of Missouri, Division No. 2.

May 13, 1902.

ASSAULT — INTENT TO KILL — STATEMENTS OF ACCUSED — RES GESTÆ — BILL OF EXCEPTIONS — SELF-DEFENSE — QUESTION BY COURT — REPUTATION.

1. In a prosecution for assault with intent to kill, it appeared that defendant and C. had had a dispute, which was resumed the next day in a saloon. There C. threw pop bottles, and defendant used a revolver, firing four shots, two of which took effect in C.'s arms. C. then drew a large knife, and defendant ran out of the back door, through an alley, to his own home, closely followed by C. Within three feet of the house door C. slipped and fell, thus giving defendant a chance to spring in and lock the door. Held, that defendant's testimony that immediately on entering the house he showed that he had another cartridge in the gun, and said, "I could have turned around when C. fell and put the gun right to his head, and killed him, but I didn't want to be no murderer, and I wouldn't shoot him with the last load," was admissible as a part of the res gestæ, and as bearing on the questions of intent to kill and self-defense.

2. Where, in a motion for new trial on the ground of newly discovered evidence, there is nothing to show in what such evidence consisted, and no affidavits in support of the motion are preserved in the bill of exception, the ruling on such motion cannot be considered on appeal.

3. Where a party to a conflict withdraws in good faith, intending to abandon it, his right of self-defense will revive, notwithstanding he began the conflict with a felonious or murderous design.

4. On a criminal trial the court has the right to question or cross-question any witness, within such bounds as control attorneys in similar interrogations.

5. On the trial of one accused of crime, evidence of specific instances of his moral dereliction cannot be properly adduced, either to tear down or build up the fabric of general reputation.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Moses Lockett was convicted of assault with intent to kill one George Carter, and appeals. Reversed.

The fifth instruction, referred to in the opinion, was as follows:

"Fifth. Upon the question of self-defense the court instructs you as follows: If you believe and find from the evidence that at the time the defendant shot said Carter he had good reason to believe, and did believe, that said Carter was about to immediately inflict upon him some great personal injury, and he shot him for the purpose of averting such apprehended injury, then you must acquit him on the ground of self-defense. Whether he had good reason to believe, and did believe, that said Carter was about to kill him, or to immediately inflict upon him some great personal injury, is for you to determine; and, if you find and believe from the evidence that he did not have reasonable grounds for so believing, you cannot acquit him on the ground of self-defense. The court further instructs you that the right of self-defense does not imply the right of attack, and a plea of justification in self-defense cannot avail in any case where a person provoked a difficulty or begins a quarrel with the purpose of taking the life of another or doing him some great bodily harm. Therefore, if you believe from the evidence that the defendant sought the difficulty, on the occasion shown in the evidence, for the purpose of wreaking his malice upon said Carter, or of shooting him, or of doing him some great personal injury, then there is no self-defense in the case, and the danger in which the defendant may have found himself during such difficulty would not justify him in shooting said Carter."

H. M. Dalton and Jos. S. McIntyre, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

SHERWOOD, P. J.

Assault with intent to kill willfully, on purpose, and of his malice aforethought George Carter, by shooting him with a pistol, was the charge which the grand jury preferred against Moses Lockett, a negro; and on such charge the traverse jury found him guilty of such assault, and assessed his punishment at imprisonment in the penitentiary for the term of two years; hence this appeal.

The circumstances which led to the shooting were, in substance, these: Defendant and Carter were both expressmen, rivals in that business, and stationed at the west end of Union Station, on Twentieth street, in St. Louis. An altercation sprang up between them on Saturday, December 29, 1900, about one or the other of them having prevented the other one from securing the hauling of a piece of baggage a stranger wished hauled, and harsh words were interchanged. On the 31st of December, or Monday evening, the quarrel was renewed in a nearby saloon, when, for words, were soon substituted full soda pop bottles and bullets. There is competition in the testimony as to whether a bottle or a bullet was the missile that opened the fray, but so it was that several soda pop bottles were thrown at defendant by Carter, and several bullets were fired by the former at Carter, two of which bullets took effect in each arm of Carter, though not, it seems, breaking the bones. When defendant had fired four shots at his jaculating enemy he retreated rapidly through the back door of the saloon, with Carter, his spring-back knife with a long blade drawn in his hand, in full pursuit; indeed, it seems the knife was drawn before the last shot was fired. At any rate, Carter ran after defendant, the latter running, and Carter pursuing him, close on his heels, and cutting at him as he ran up an alley on which the back door of defendant's house abutted. Carter got close on to defendant, — within a step of him, — when Carter's feet slipped on some ice when within about three feet of that door, and he fell, and this gave defendant a chance to spring through the door, when it was slammed to and locked by some member of defendant's family, in order to prevent Carter from gaining access to the house. Defendant testified when he escaped from Carter by springing through the door just as Carter fell, that "when I went in the house I says, `Now, people,' I says, `I'm in this trouble with this man. Now, look; all of you can see here's one more cartridge in the gun.' And I says, `I could have turned around when Carter fell, and put the gun right to his head and killed him;'...