Barnhill v. Poteet

• Decision Date: 07 April 1919
• Docket Number: No. 13005.,13005.
• Parties: BARNHILL v. POTEET.
• Court: Missouri Court of Appeals

211 S.W. 106

BARNHILL v. POTEET.

No. 13005.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Buchanan County; William H. Utz, Judge.

"Not to be officially published."

Action by William Barnhill against Frank Poteet. Judgment for plaintiff, and defendant appeals. Judgment reversed, and cause remanded.

B. I. Woodson and Strop & Mayer, both of St. Joseph, for appellant.

Duvall & Boyd, of St. Joseph, for respondent.

BLAND, J.

This is an action for assault and battery. Plaintiff recovered a verdict and judgment in the sum of $3,000, and defendant has appealed. The facts show that in March, 1917, the defendant was operating a bank in the town of Easton, Buchanan county, Mo., and also a small farm near said town. He employed plaintiff to work upon his farm. Plaintiff continued in the employ of defendant until the following June. During this period ill feeling between plaintiff and defendant developed, resulting in defendant's shooting plaintiff on the 15th day of September, 1917.

The day before the shooting plaintiff went into defendant's bank to effect a settlement of their monetary affairs growing out of plaintiff's employment. At that time defendant abused the plaintiff and ordered him out of the bank, and plaintiff replied, "All right, damn you," and started out, and defendant followed him out with a chair and struck at him with it. On the day of the shooting plaintiff was standing upon a street in the town of Easton, talking to some parties. Defendant came along the street, passed plaintiff, going about 15 feet beyond him, at which point defendant stopped, turned around, and, according to plaintiff's testimony, said:

"The next time I tell you to get out of my bank, you git."

Plaintiff replied:

"Mr. Poteet, I am not at your bank, and I have got nothing particular against you, and I don't want to have any trouble with you; go on."

At this defendant pulled a gun from his inside coat pocket and fired it at plaintiff, striking him. Plaintiff testified that he had nothing in his hands, and made no move toward defendant, and that he was not armed. Plaintiff further testified that, when defendant passed him, "he was looking at me with an expression on his face that I never had seen on a man's face before," and that just before defendant spoke to him "he had his hand in his inside pocket, or kept fumbling around in his pocket some way." "

According to defendant's testimony when he passed plaintiff, he looked at him to see if he was sober, and "I thought to myself, he is sober now, and I can talk to him," and after passing he turned and said to plaintiff:

"Barnhill, when you come in my bank again, and I ask you to go out, I want you to do so."

Defendant says he was afraid of plaintiff. Plaintiff had made threats against defendant's life, according to defendant's evidence, and plaintiff was much superior physically. Plaintiff replied:

"God damn you, if you fool with me, I will break your head, and he started for me, and I knew that if he got to me that I was a cripple for life, or else he would kill me, and I just ran my hand in my pocket and got the pistol and shot."

Another witness testified that he heard defendant say, just before the shooting, "The next time I order you out of the bank, you git," and that defendant repeated this remark twice again, and that plaintiff said, "You go on, or I will beat you, so you can't." Defendant replied, "No, you won't," and then drew his gun and shot plaintiff.

Defendant complains of the giving by the court on behalf of the plaintiff of the following instruction:

"The court instructs the jury that the burden of proving justification of the assault and shooting of plaintiff by the defendant (if you believe that defendant did assault and shoot the plaintiff) rests on the defendant, and unless defendant has proven such justification of such assault and battery, you cannot find for the defendant on that ground."

This instruction submitted a question of law to the jury and was for that reason clearly erroneous. A justification that would constitute a defense to the assault charge is such justification as would satisfy the law and not the jury. The instruction told the jury that the burden was upon the defendant to prove "justification," leaving them to determine what facts would satisfy the law and constitute a good defense and justification, a question of law that they were not competent to determine, and which should not have been submitted to them. State v. Hickam, 95 Mo. 322, loc. cit. 329, 8 S. W. 252, 6 Am. St. Rep. 54; Mullenix v. Briant, 198 S. W. 90; Cooper v. Railroad, 123 Mo. App. 141, We. cit. 146, 100 S. W. 494; Carpenter v. Railroad, 119 Mo. App. 204, loc. cit. 209, 95 S. W. 985; Kendall Boot & Shoe. Co. v. Bain, 46 Mo. App. 581; State v. Hardelein, 169 Mo. 579, 70 S. W. 130.

As the case will undoubtedly be retried, it becomes necessary for us to pass upon the other questions raised by defendant. Defendant complains of the giving of plaintiff's instruction No. 1, which told the jury that, if defendant intentionally shot " plaintiff, their verdict should be for the plaintiff, "unless you further find from the evidence that plaintiff had made an attack on the defendant, and that the defendant resisted such an attack, if any, by using no more force to repel such attack, if any, than was reasonably necessary."

Defendant contends that it was not necessary in order for him to claim self-defense that he wait until plaintiff had attacked him, but it was sufficient for defendant to take the action he did to protect himself, if he had reason to believe and did believe that an attack was imminent and about to be made. Defendant construes the word "attack" to mean an actual battery. Defendant also complains of that part of the instruction which told the jury that defendant could not use any "more force to repel such an attack than was reasonably necessary"; it being defendant's contention that he was not...