82 Mo. 623 (Mo. 1884), State v. Culler

Citation:82 Mo. 623
Opinion Judge:SHERWOOD, J.
Party Name:THE STATE v. CULLER, Appellant.
Attorney:S. P. Huston and C. W. Bell for appellant. D. H. McIntyre, Attorney General, for the State. Third --Giving the sixth instruction for the State.
Judge Panel:In the views herein expressed RAY, J., concurs.
Court:Supreme Court of Missouri

Page 623

82 Mo. 623 (Mo. 1884)



CULLER, Appellant.

Supreme Court of Missouri.

October Term, 1884

Appeal from Putnam Circuit Court. --HON. ANDREW ELLISON, Judge.


On the trial of the cause the court gave, among others, the following instructions which are complained of by appellant:

6. The court instructs the jury that even though they should believe, from the evidence in the cause, that Deck first struck or assaulted defendant with a club, yet if they further believe from the evidence that the deceased and his family were in the peaceable possession of the milk lot, then they had a right to lay up the rail fence surrounding it. If, therefore, they believe from the evidence that Deck, on discovering that his fence had been thrown down, was in the act of laying up the same, and while so engaged defendant came up to him and interfered with his work by ordering him to desist, and threatening to assault him if he did not, and intending to do so, then Deck was justifiable in so assaulting defendant, if it was necessary to prevent his interference, and such assault affords no excuse for defendant in shooting deceased.

8. If the jury find from the evidence that defendant and deceased had a difficulty which resulted in the death of deceased, and that defendant commenced the difficulty, or brought it on by any willful and unlawful act of his, committed at the time, or that he voluntarily and of his own free will and inclination entered into the difficulty, then there is no self-defense in the case, and the jury should not acquit on that ground; and in such case it makes no difference how imminent the peril may have been in which the defendant was placed during the difficulty.

S. P. Huston and C. W. Bell for appellant.

The court erred in overruling defendant's challenges for cause to the jurors, Dillmer, Wells, Canby, Hargrave and Terrell. They stated on their examination that they had read the evidence taken before the coroner's inquest and had formed opinions therefrom. This absolutely disqualified them. The opinion was not formed from rumor nor newspaper reports, but on the sworn testimony. R. S. 1879, § 1897. In such case no purging can cure the disqualification. In the following cases the opinions were founded on rumor, and within the exception in section 1897, supra: Baldwin v. State, 12 Mo. 225; State v. Rose, 32 Mo. 355; State v. Core, 70 Mo. 491; State v. Barton, 71 Mo. 288. The case of the State v. Walton, 74 Mo. 271, is no authority for this case, and the same may be said about the State v. Brown, 71 Mo. 454. The court erred in giving the eighth instruction for the State, because there was no evidence of a mutual combat, or that defendant commenced the difficulty. It, also, deprives defendant of the right of self-defense if he had entered into a mere assault, an affray or a battery. Daniels v. State, 10 Lea (Tenn.) 261; Windon v. Comm., 79 Ky. 461. The instruction erroneously uses the word " " difficulty." The court erred in giving the sixth instruction for the State.

D. H. McIntyre, Attorney General, for the State.

The jurors who had read the testimony taken before the coroner and formed an opinion therefrom, were not disqualified. R. S. 1879, § 1897; State v. Walton, 74 Mo. 270, and cases cited. There is no error in the sixth instruction given for the State. State v. Brown, 64 Mo. 373. And the eighth instruction for the State is a correct statement of the law of self-defense. State v. Linney, 52 Mo. 40; State v. Underwood, 57 Mo. 40; State v. Ellis, 74 Mo. 207.


The defendant was indicted for the murder of one Wm. C. Deck by shooting him with a pistol. His only plea was self-defense, and there was evidence which fully supported that plea, as well as evidence of a contrary effect. Tried, he was convicted of murder in the second degree and his punishment assessed at forty years imprisonment in the penitentiary.

Three grounds are urged for a reversal of the judgment:

First --Overruling defendant's challenge for cause of certain members of the panel of forty from which the selection of jurors was made; one of such panel being one of the jurors who tried the issue joined.

Second --The giving of the eighth instruction on behalf of the State.

Third --Giving the sixth instruction for the State.

These grounds will be considered in their order:

I. Dillmer, one of the panel of forty, asked on his voir dire if he had formed or expressed an opinion as to the guilt or innocence of the accused answered " that he had formed such opinion from reading the evidence as published in the papers taken before the coroner and that he had such opinion still." Thereupon asked by the court if he could try the case and render a verdict according to the law and the evidence regardless of everything he had previously read or heard of the case, answered he could. Asked, also, if he had any bias or prejudice for or against the prisoner, he answered in the negative, and the defendant's challenge was disallowed. Other persons summoned on the panel, Wells, Canby, Hargrave and Terrell, being sworn to answer questions, answered that " they had read the evidence taken before the coroner, and that they had formed an opinion from such testimony." Upon this the defendant challenged them for cause, whereupon similar questions, as heretofore mentioned, were asked and answered in a similar way, resulting in the defendant's challenge of them, also, being overruled.

Our statute is specific in its prohibitions that no accused party shall be required to make peremptory challenges until a panel of competent jurors is obtained. R. S., § 1,903; State v. Davis, 66 Mo. 684.

It is quite clear this statutory right of the defendant was denied him, so far as concerns those who " had read the evidence taken before the coroner." And Wells, one of these, was afterwards sworn on the jury that tried the cause. Section 1,897, R. S., provides " it shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue or any material fact to be tried; but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn." The rule of the statute then is the absolute disqualification of every one offered for a juror who has formed or delivered an opinion on the issue, etc.; the exception is where such opinion is founded only on rumor or newspaper reports, and even the exception has no operative effect if they have been such as to prejudice or bias his mind. There can be no question, therefore, as to the absolute...

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