State v. Hickam

• Decision Date: 21 May 1888
• Citation: 8 S.W. 252,95 Mo. 322
• Parties: The State v. Hickam et al., Appellants
• Court: Missouri Supreme Court

8 S.W. 252

95 Mo. 322

The State v. Hickam et al., Appellants

Supreme Court of Missouri

May 21, 1888

Appeal from Moniteau Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

Draffen & Williams for appellants.

(1) The court committed error in giving the fifth instruction asked by the state. Chaffee v. United States, 18 Wall 516, 545; State v. Fowler, 52 Iowa 103; People v. Coughlin, 32 N.W. 905; Nichols v. Winfrey, 79 Mo. 544; Jones v. State, 13 Tex.App. 1; State v. Wingo, 66 Mo. 181; Dubose v. State, 10 Tex.App. 230; Stokes v. People, 53 N.Y. 164; Commonwealth v. McKie, 1 Gray, 61; State v Porter, 34 Iowa 139; Rains v. Railroad, 71 Mo 164, 169; Anderson v. McPike, 86 Mo. 293, 299; State v. Ellis, 74 Mo. 207, 219; Morgan v. Durfree, 69 Mo. 469; Goetz v. Railroad, 50 Mo. 472; State v. Simms, 68 Mo. 305; Singer Mf'g Co. v. Hudson, 4 Mo.App. 145; State v. Foley, 12 Mo.App. 431; State v. McNally, 87 Mo. 644. (2) The court committed error in giving the fourth instruction for the state. Nichols v. Winfrey, 79 Mo. 544; State v. Palmer, 88 Mo. 568; State v. Sloan, 47 Mo. 604; Runyan v. State, 57 Ind. 80. (3) The eighth instruction for the state was erroneous. State v. Curtis, 70 Mo. 594, 598; State v. Seward, 42 Mo. 206; State v. Sands, 77 Mo. 118; State v. McNally, 87 Mo. 644; State v. Ellis, 74 Mo. 207, 219; Morgan v. Durfee, 69 Mo. 469; Rains v. Railroad, 71 Mo. 164; State v. Stewart, 29 Mo. 419. (4) The ninth instruction, under the evidence in this case, was misleading. It was in conflict with the third instruction given for defendants. State v. Partlow, 90 Mo. 608. (5) The tenth instruction for the state ought not to have been given. It was directed against the defendant, Samuel Hickam, and prejudiced the jury against him. Such an instruction should not be given in ordinary jury trials, simply because of a conflict in the testimony. White v. Maxey, 64 Mo. 559; Bank v. Murdock, 62 Mo. 70; State v. Palmer, 88 Mo. 568. (6) The court erred in refusing the fourth instruction asked by defendants.

B. G. Boone, Attorney General, for the state.

The trial court, at the instance of the state, gave ten instructions. The first is a formal instruction under the indictment, and prescribes the punishment provided for by section 1262, Revised Statutes. The second defines the technical words necessary to properly charge an assault under section 1262, Revised Statutes. The third explained to the jury that the actual perpetrator of the assault, and those present aiding, etc., were equally guilty, or all principals (R. S., secs. 1649, 1655), and prescribed the punishment provided for by section 1263, Revised Statutes. The fourth explained the limit of self-defence, and correctly declared the law. The fifth is to the effect that if the jury believe that the defendant, Samuel Hickam, assaulted Davenport with a deadly weapon, the jury will find him (Hickam) guilty, unless he explains such assault to the satisfaction of the jury. The sixth is the usual instruction as to defendants testifying in their own behalf. State v. Jones, 86 Mo. 625; State v. Cook, 84 Mo. 40; State v. Wisdom, 84 Mo. 190; State v. McGinnis, 76 Mo. 328; State v. Zorn, 71 Mo. 415. The seventh is as to reasonable doubt. State v. Payton, 90 Mo. 220. The eighth is as to the legal presumption arising from the use of a deadly weapon. State v. Wisdom, 84 Mo. 188; State v. Dickson, 78 Mo. 440; State v. Thomas, 78 Mo. 337; State v. Curtis, 70 Mo. 594. The ninth further defines and explains the doctrine of self-defence as a law of necessity. State v. Thomas, supra. The tenth tells the jury that if any witness has knowingly testified falsely they will disregard such witness' testimony. This instruction was proper, and there was sufficient basis for its being given. State v. Palmer, 88 Mo. 472, and cases cited.

Brace, J. Norton, C. J., concurs in the result.

OPINION

Brace, J.

The defendants were jointly indicted under section 1262, Revised Statutes, 1879, for assaulting and shooting one Harrison Davenport, "on purpose and with malice aforethought," with the intent him the said Davenport to kill; the defendant, Samuel Hickam, as principal, and the other defendants as present aiding, helping, abetting, etc., the said Samuel in the felony and assault as aforesaid. They were all found guilty under section 1262, supra, the punishment of Samuel Hickam assessed at five years imprisonment in the penitentiary, and that of the other defendants at fines in different amounts. The defendant Susan is the mother, and defendant, Nancy Lamm, is the sister, of said Samuel, and defendant, Edie Bell, was a colored servant of the said Susan. As ground for reversal of the judgment in this case, it is urged that the trial court committed error in giving for the state instructions four, five, eight, nine, and ten, which are as follows:

"4. The court instructs the jury that even though the defendant, Samuel Hickam, may have had good reason to believe, and did believe, that the witness, Harrison Davenport, was about to do him some great bodily harm, yet that would not justify him in using any greater amount of force than was necessary to repel such an attack as said Hickam apprehended was about to be made upon him; and if the jury shall find that the defendant, Samuel Hickam, did shoot said Davenport and wound and disable him in such a manner that said Davenport could not make any further attack or resistance, and that the said defendant, Samuel Hickam, knowing him to be so wounded and disabled, did continue to assault him, then such assault, made after said Davenport was so wounded and disabled was not made in necessary self-defence."

"5. If the jury shall believe, from the evidence, that Samuel Hickam made an assault upon the witness, Harrison Davenport, with a pistol, in the manner and form as charged in the indictment, it devolves upon the defendant to show, to the satisfaction of the jury, some satisfactory grounds for making such assault, and unless he has so done, the jury should find him guilty."

"8. The court instructs the jury that he who wilfully, that is, intentionally, uses upon another, at some vital part, a deadly weapon, such as a revolver, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death; and, knowing this, must be presumed to intend death, which is the probable consequence of such an act; and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a base heart. If, therefore, you believe, from the evidence, that the defendant, Samuel Hickam, on the twenty-fifth day of July, 1884, in the county of Cooper, and state of Missouri, did shoot Harrison Davenport with a pistol, with the manifest design to use such a pistol upon him, without sufficient reason, cause, or extenuation, then the jury will find said defendant, Samuel Hickam, guilty, and assess his punishment at imprisonment in the penitentiary not exceeding ten years."

"9. The court instructs the jury that the law of self-defence is emphatically a law of necessity, and no person can avail himself of the right of self-defence, where he freely and voluntarily enters into and engages in a difficulty, and if the jury shall believe, from the evidence, that Samuel Hickam sought a difficulty with the witness Davenport; and that he voluntarily entered into such difficulty; and that he shot the said Davenport on purpose, and of his malice aforethought, then there is no self-defence in this case."

"10. The jury are instructed that if they shall believe, from the evidence, that any witness has knowingly testified falsely to any material fact, then the jury may disregard the whole of the testimony of such witness."

The court refused to give the following instruction in behalf of defendants:

"The mere fact that Nancy Lamm, Susan Hickam, and Edie Bell engaged or took part in the fight or difficulty in which Davenport was shot, is insufficient to convict them; under the indictment in this case, it must further be shown by the evidence, to the satisfaction of the jury beyond a reasonable doubt, that they, with knowledge of the intention of said Samuel Hickam to do said shooting, aided, abetted, counselled, advised, or commanded him to shoot said Davenport, and unless this proof has been made they must find said defendants, Susan Hickam, Nancy Lamm, and Edie Bell, not guilty, although they may have been present and may have been engaged in the difficulty when the shooting took place."

I. The proposition contained in the first paragraph of the fourth instruction is incorrect. If the defendant, Samuel Hickam, had good reason to believe, and did believe, that Davenport was about to do him some great bodily harm, and "acted in a moment of apparently impending peril, it was not for him to nicely gauge the proper quantum of force necessary to repel the assault." State v. Palmer, 88 Mo. 568. On the plea of self-defence, the question to be determined by the jury was, not whether the shooting was actually necessary to repel the attack, or whether some other or lesser force might not have been adequate to the defendant's emergency, but whether when he did shoot, under all the circumstances, he had reasonable cause to believe, and did believe, that such shooting was necessary to protect himself from impending danger of great bodily harm. Nichols v. Winfrey, 79 Mo. 544, and cas. cit. This incorrect proposition was so connected with the correct one declared in the second paragraph of the instruction as to indicate that the latter was the corollary or equivalent of the former, and as a whole the instruction had a tendency to confuse or mislead the minds of the jurors.

II. The fifth instruction, purporting to cover the whole case, is...