88 Mo. 568 (Mo. 1886), State v. Palmer

Citation:88 Mo. 568
Opinion Judge:SHERWOOD, J.
Party Name:THE STATE v. PALMER, Appellant.
Attorney:Draffen & Williams for appellant. B. G. Boone, Attorney General, for the state.
Court:Supreme Court of Missouri
 
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Page 568

88 Mo. 568 (Mo. 1886)

THE STATE

v.

PALMER, Appellant.

Supreme Court of Missouri.

April Term, 1886

Appeal from Cooper Circuit Court. --HON. E. L. EDWARDS, Judge.

REVERSED.

The following is the eleventh instruction given for the state:

" If the jury believe, from the evidence, that the defendant and the deceased, prior to their meeting in Ashcraft's store, had an altercation, and that the defendant afterward went into said store and there met the deceased, and that a difficulty arose between them, and that the deceased advanced towards the defendant in a threatening manner, and if the jury shall further find, from all the facts and circumstances in evidence, that the defendant had reasonable cause to believe, and did believe, that the deceased intended to do him some great bodily harm, and that there was imminent danger of said design being carried into execution, then he had the right to act upon appearances as they presented themselves to him at the time, and if he threw the weight to protect himself from such attack, and in doing so used no more force than was necessary for that purpose, then the jury must find the defendant not guilty, although they may believe that as a matter of fact said appearances were false, and that the deceased did not intend to do him great bodily harm, and that there was no immediate danger thereof."

Draffen & Williams for appellant.

(1) The tenth instruction, given at the instance of the state, is clearly and manifestly erroneous. Bank v. Murdock, 62 Mo. 70; State v. Elkins, 63 Mo. 159; Evans v. Ry. Co., 16 Mo.App. 522; Fath v. Hoke, 16 Mo.App. 537. (2) The court erred in permitting witnesses to state that defendant's general moral character was bad without eliciting in what particular this was so. State v. Shields, 13 Mo. 236. (3) The eleventh instruction, upon the subject of self-defence, was erroneous. Nichols v. Winfrey, 79 Mo. 544. (4) The court erred in failing to instruct the jury as to manslaughter in the second and third degrees. It was the duty of the court to give proper instructions, whether asked or not, defining each offence of which the defendant, under the evidence, could have been convicted. State v. Branstetter, 65 Mo. 149. The defendant stated that he did not intend to kill the deceased. He had the right to testify as to his intent. State v. Banks, 73 Mo. 592; State v. Tate, 12 Mo.App. 327. The jury...

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