Nichols v. Winfrey

• Decision Date: 31 October 1883
• Citation: 79 Mo. 544
• Parties: NICHOLS v. WINFREY, Appellant.
• Court: Missouri Supreme Court

79 Mo. 544

NICHOLS

v.WINFREY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

Kinley & Wallace, J. E. Wait and Waters & Winslow for appellant.

Chas. Hammond, A. W. Mullins and S. P. Huston for respondent.

PHILIPS, C.

This action was begun by Josephine Steinbeck, as the widow of James Steinbeck, deceased, for the malicious, wrongful and unjustifiable killing of her said husband in Chariton county on the 17th day of July, 1876. The plaintiff has since intermarried with W. H. Nichols. The answer contained a general denial, and then pleaded that the killing was done in the necessary defense of defendant's person, and in the defense of his house then occupied by defendant, after being assaulted therein by the deceased. The venue of the cause was transferred, at plaintiff's instance, to Livingston county, where, on trial before a jury, the plaintiff recovered judgment for $2,500, from which the defendant has appealed to this court. The controlling features of the evidence, as also the instructions to be reviewed, will appear in their proper connection in the course of this opinion.

1. ACTION FOR HOMICIDE: evidence of defendant's fears.

I. While the defendant was testifying in his own behalf, the following question was propounded to him by his “You may state what your apprehensions were when you shot?” On the objection of plaintiff the court refused to allow the witness to answer this question. On the authority of the ruling in White v. Maxcy, 64 Mo. 560, the ruling of the circuit court was correct. This form of question is supposed to differ from an inquiry into the motive or intention of the party, which the authorities hold to be perfectly competent for a defendant to state in such actions. State v. Banks, 73 Mo. 592; Vansickle v. Brown, 68 Mo. 634; Broad v. Ham, 5 Bing. (N. C.) 722; McKown v. Hunter, 30 N. Y. 625; Kerrains v. People, 60 N. Y. 228, 229; Field on Dam. § 25.

2. SELF-DEFENSE.

II. The following instruction, given on behalf of plaintiff, is assigned for error: 3. “Although the jury may find from the evidence that the plaintiff's husband, prior to the shooting mentioned in the pleadings, had been holding the defendant, and was, at the time the shot was fired, advancing or attempting to advance toward defendant; yet if the jury shall further believe from the evidence that the shooting and killing of the plaintiff's husband was unnecessary, and was the use of greater violence than the occasion required to protect himself at the very time of the shooting, from any apprehended or any great violence of said deceased, then the jury must find for the plaintiff.”

This instruction is not in accord with the recognized law of self-defense in this State, nor generally in the American states since the celebrated case of Selfridge's Trial. Without reviewing the numerous leading cases in which this matter has been so ably discussed, it is sufficient to say that the accepted doctrine is “when a person apprehends that some one is about to do him great bodily harm, and there is reasonable cause for believing the danger is imminent that such design will be accomplished, he may safely act upon such appearances, and may even kill the assailant if that is necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterward turn out that the appearances were false, and there was in fact neither design to do him serious injury nor danger that it would be done. He must decide at his peril upon the force of circumstances in which he is placed, for that is a matter which will be subject to judicial review. But he will not act at his peril of making that guilt if appearances prove false which would be innocent had they proved true.” State v. Sloan, 47 Mo. 612; Morgan v. Durfee, 69 Mo. 477; State v. Eaton, 75 Mo. 591; Pond v. People, 8 Mich. 150; Shorter v. People, 2 Comst. 193.

The evidence pertinent to this point showed, substantially, that the deceased was a resolute man of unusual physical power, greatly superior to the defendant in strength. Without any apparent provocation, he assaulted the defendant in his own house, and held him within his arms, as in a vise, pressed against the wall, while the defendant was so overpowered by the mastery of his assailant that he could neither resist nor extricate himself. In the encounter the defendant's face was bruised or scratched, and his neck was so strained as to cause it to swell and stiffen. As evidence of the animus of the deceased, he said, while so holding the defendant, “Damn you, Winfrey, I have heard of you before, you have got hold of the wrong chicken.” And as a proof of the fear which deceased had inspired in those who knew him, when the defendant called out to the bystanders to take the deceased off, and the town marshal summoned them to aid him in breaking his hold on defendant, they declined to interfere on the ground that they were not armed. When his hold was broken by the marshal, and the defendant ran behind his counter, the deceased, as if following him up, dragged the marshal along with him, and was a few feet from the defendant when he shot. It is not the province of the court to say what was the purpose of the deceased or what the real peril of the defendant. The deceased, as it afterward turned out, was not armed, but this fact does not appear to have been known by the defendant at the time of the homicide. With or without arms such a foe possessed immense capacity for inflicting great personal injury.

The defendant had the right, in defense of his person and for the proper and necessary assertion of dominion over his house, which for the time being was his “castle of defense,” to act upon appearances. His responsibility to the law was only that, in the judgment of the triers of the fact, he should, at the time of the homicide, have had reasonable cause to apprehend imminent danger or great bodily harm; and if he shot under such appearances, he is justified by the law no matter if, in fact, the danger was not real or imminent, or if less violentmeans might have availed for his protection. Authorities above cited. Yet this instruction told the jury that notwithstanding the deceased had been holding the defendant “and was, at the time the shot was fired, advancing or attempting to advance toward defendant,” if the jury should conclude that, as a matter of fact, the killing was unnecessary and greater violence than the occasion required, the jury should find for the plaintiff. If this be law, then, as this court, through Wagner, J., said in State v. Sloan, supra, “a party must act at his peril of making that guilt if appearances prove false which would be innocent had they proved true.” Such is not the law of the land, and ought not to be.

3. ACTION FOR HOMICIDE: burden of proof: self-defense.

III. The defendant complains of the fourth instruetion conceded to the plaintiff, in which the jury were told “that before they can find for the defendant on the ground of self-defense, it devolves upon him to establish by a preponderance of the testimony that, at the time he shot and killed Steinbeck, Winfrey had reasonable cause to apprehend a design on the part of Steinbeck to do him some great personal injury, and had also reasonable cause to apprehend immediate danger of such design being accomplished.”

It is unnecessary to the decision of the propriety of this instruction, as applied to the facts of this case, to pass on the question as to whether the burden of proof in this character of action rests throughout and to the same extent on the plaintiff, as it does on the prosecution in a criminal case. It may be affirmed that the prosecutor under the statute for the recovery of damages is not held to the establishment of the defendant's guilt beyond a reasonable doubt. He is only required to make out his case by a preponderance of evidence to the satisfaction of the jury.

The allegation of the petition is that the defendant, “with force and arms, violently, maliciously, unlawfully and wrongfully, without any just cause, did shoot the said James Steinbeck.” The answer denied generally the allegations of the petition, and then in the form of new matter pleaded that the act was done in self-defense and in defense of defendant's house, in which he was unjustifiably being assaulted by the deceased. This apparently new matter, however, was in legal effect embraced in the general denial, and would have been admissible in evidence thereunder. These matters too were covered by the averments of the petition. To maintain the issues on plaintiff's part she could not have stopped in her evidence by merely proving that defendant shot and killed her husband; for by the terms of the statute under which she sought to recover, the killing must have been wrongful, and the allegations of the petition were that the killing was malicious, wrongful and without just cause.

The obligation to prove the facts essential to the right of recovery lies upon the party “who substantially asserts the affirmative of the issue.” Greenleaf Ev., § 74. The burden of proof is fixed at the inception of the trial “by the nature of the allegations of the pleadings, and it is settled as a question of law and does not change during the course of the trial.” Note a and authority cited, supra. In Powers v. Russell, 13 Pick. 69, 76, Shaw, C. J., gives a most lucid and succinct statement of the rule: Where the proof on both sides applies to one and the same issue or proposition of fact, the party whose case requires the establishment of such fact has all along the burden of proof, although the weight in either scale...