State v. McKenzie
| Decision Date | 17 November 1903 |
| Parties | THE STATE v. McKENZIE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.
Affirmed.
J. L Stephens for appellant.
(1) There is nothing in this case that warranted the instructions on manslaughter in the fourth degree. State v Hopper, 71 Mo. 425; State v. Talbott, 73 Mo 347; State v. Patterson, 71 Mo. 713; State v. Hersell, 97 Mo. 105; State v. Payton, 90 Mo. 220; State v. Turlington, 102 Mo. 642; State v. Brady, 87 Mo. 142; State v. Punshon, 124 Mo. 448; State v. Lewis, 118 Mo. 79. (2) The instruction on self-defense erroneously cast the burden of proof on the defendant, and required him to absolutely establish his defense before the jury could acquit; and further mystified and misled the jury from a proper consideration of the defendant's instruction on self-defense. State v. Wingo, 66 Mo. 181; Nichols v. Winfry, 79 Mo. 544; State v. Hickam, 95 Mo. 322. The burden of proof was on the State throughout the whole case; it shifted to the defendant. This instruction reversed the universal rule; it practically assumed that the defendant was guilty, and prohibited the jury from acquitting unless they absolutely believed that the shooting was justified. This instruction is in conflict with the one given on self-defense for the defendant and the jury were left to decide which one of these two instructions to follow. State v. Tatlow, 136 Mo. 678; State v. Luke, 104 Mo. 563. (3) The court erred in refusing to grant defendant a new trial upon the grounds of the newly-discovered evidence of Whitmore. If defendant had been given the advantage of this evidence upon a new trial, we think the result of the case would have been different. State v. Murry, 11 Mo. 95.
Edward C. Crow, Attorney-General, and Sam. B. Jeffries, Assistant Attorney-General, for the State.
(1) There was ample evidence in the case to show violent passion suddenly aroused by reason of the deceased's having assaulted defendant with the knife. State v. Thomas, 78 Mo. 327. The provocation necessary to reduce from murder in the second degree to manslaughter in the fourth degree may consist of opprobrious epithets, insulting gestures and the like. State v. Bulling, 105 Mo. 204; State v. Thomas, 78 Mo. 327; State v. McKenzie, 102 Mo. 620. Reasonable provocation, such as a blow, will reduce a homicide to manslaughter. State v. Ellis, 74 Mo. 204; State v. Stephens, 96 Mo. 637; State v. Curtis, 70 Mo. 594; State v. Douglas, 81 Mo. 231. So also will the intentional killing of another without malice upon a sudden quarrel or in a heat of passion reduce the crime from murder to manslaughter. State v. Edwards, 70 Mo. 486. Defendant can not be consistent with the wellknown rules of criminal law and say that where there is a heat of blood, caused by sufficient provocation, a sudden homicide, committed before the mind has time to act and realize the gravity of the offense, if not justifiable or excusable, is not manslaughter. State v. Bulling, 105 Mo. 204; State v. Starr, 38 Mo. 270. Where the evidence has the least tendency to show that the killing was intentionally done in a heat of passion caused by a blow, an instruction for manslaughter in the fourth degree must be given. State v. Douglass, 81 Mo. 231; State v. Wilson, 98 Mo. 446; State v. Crabtree, 111 Mo. 136; State v. Herman, 117 Mo. 629; State v. Reed, 154 Mo. 122. (2) Instruction 5 tells the jury that unless they find from the evidence that defendant had reasonable ground to believe, and did believe, that the deceased was about to take his life or to do him some great bodily harm, and that the danger of his doing so was then and there imminent and impending; and that if they believed from the evidence that defendant could have, with safety to himself, avoided the shooting, they should find him guilty. The right of self-defense never arises until the accused has done all in his power to avoid the shooting or killing. State v. Kloss, 117 Mo. 592; State v. Lewis, 118 Mo. 79; State v. Johnson, 76 Mo. 121; State v. Cushenberry, 157 Mo. 168. There is no shifting of burden and no injustice done by the instruction in question. It properly presented the matter to the jury for determination. (3) The court instructed the jury that it is not sufficient that defendant may have acted upon an honest belief that danger was impending to his life or person, but it must appear from the evidence that he had reasonable cause to apprehend danger, real and imminent, at the time of the killing. This instruction has always been followed when the plea of self-defense was interposed. It is the law and can not be successfully contradicted. It is not sufficient that defendant thought he was in danger; he must have reasonable ground for so thinking. State v. O'Connor, 31 Mo. 389; State v. Duncan, 116 Mo. 296; State v. Eaton, 75 Mo. 586; State v. Brown, 63 Mo. 439; State v. Alley, 68 Mo. 124. The jury are the sole judges as to the time when the assaulted party may strike and the degree of force he may use to defend a violence and injury to himself. State v. Stockton, 61 Mo. 383.
OPINION
The indictment in this case charges the defendant with murder in the second degree for killing one John Hawkins at Boone county on the 19th day of February, 1901. The indictment was found by a grand jury at the June term, 1901, of the circuit court. Trial was had on the 20th day of June, 1901, which resulted in a hung jury. The defendant was then placed under a $ 1,500 bond and the cause continued until the following term. On the 9th day of June, 1902, a second trial was had which resulted in a verdict of manslaughter in the fourth degree and the punishment fixed at two years in the penitentiary. From this verdict, this appeal was taken.
The facts as detailed by defendant, the only witness on the part of the defense, as to what actually occurred at the time of the tragedy, are substantially as follows:
The defendant, J. R. McKenzie, lived in Centralia, Boone county on the date the killing occurred, to-wit, on the 19th day of February, 1901; the deceased, John Hawkins, lived in Sturgeon. They had known each other for a long time. On the morning of the 19th day of February, 1901, defendant left Centralia on the 7 a. m. train for Columbia, to see Allen Arnold about renting a business house, located in Centralia; defendant on the night before and for some time had been sitting up with his sister-in-law during a spell of sickness. She lived in the suburbs some distance from where defendant lived, and having to return home very late in the night or early in the morning, he carried a revolver for his protection. And having returned from sitting up with his sister-in-law the night before, he overslept himself and hence was compelled to dress himself in a hurry for the train to Columbia, and in so doing forgot to leave the revolver, in fact, did not think of it being in his coat pocket and did not discover that he had the revolver until he had boarded the train. On the train he met the deceased, John Hawkins, who also came to Columbia. Defendant transacted his business with Mr. Arnold and then met with the deceased, Hawkins. They participated in a game of poker, with other parties. It seems that McKenzie won a small amount of money and Hawkins wanted a division, and in order to avoid trouble McKenzie gave Hawkins $ 2.50, and said to Hawkins, "that is robbing me, John;" that Hawkins took offense at this remark. Both the defendant and deceased were somewhat drinking. That just before train time, which was 1:40 of the same day, they were in the Wayne saloon. Hawkins stepped out the back way and defendant left for the train; in a few minutes Hawkins came in and asked where McKenzie was, and William Smith, the bartender, a witness in the case, told Hawkins that McKenzie had gone to take the train. Whereupon Hawkins remarked that he would get the damn son of a bitch at Centralia. Both McKenzie and Hawkins left Columbia and arrived at Centralia on the same train at 2:20 p. m. They did not travel in the same car; in fact, McKenzie did not know that Hawkins was on the train until he saw Hawkins on the depot platform at Centralia. When McKenzie stepped out of the coach onto the platform to get off, he saw Hawkins near the southwest corner of the depot, and Hawkins motioned for McKenzie to come to him. McKenzie got off the train, walked west about a carlength and then turned north and went across the main track to the depot platform towards Hawkins; as McKenzie reached Hawkins, Hawkins turned to the side of McKenzie. They both walked north along the west end of the depot until they reached the northwest corner, which is the rear part of the depot, where Hawkins stopped and McKenzie turned facing him. Hawkins said to McKenzie: "Riley, damn you, did you say that I robbed you?" McKenzie replied: "Well, by God, John, I gave you $ 1.25 twice." Whereupon Hawkins said, "You are a damn liar," and made a thrust at McKenzie with a knife. That Hawkins continued to follow McKenzie, cutting at him all the time, having cut McKenzie's coat sleeve in two places. That soon as possible McKenzie drew his revolver from his pocket and fired, in all, four shots at Hawkins in rapid succession which shooting resulted in the death of Hawkins. The second shot took effect in the lobe of the left ear below the ear, and entered the neck; the third shot took effect to the left and a little above the left nipple, ranging upward, and went through the chest wall; another wound was found on the hand -- defendant does not know for certain but thinks that wound was made by the last shot. Two balls struck the depot building, one on the door-facing over the door, about...
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