State v. Adler

• Decision Date: 07 November 1898
• Citation: 47 S.W. 794,146 Mo. 18
• Parties: STATE v. ADLER.
• Court: Missouri Supreme Court

47 S.W. 794

146 Mo. 18

STATE v. ADLER.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

HOMICIDE — SELF-DEFENSE — DANGER FROM CROWD — INSTRUCTIONS — RENEWING FIGHT — MALICE — FLIGHT OF ACCUSED — PRESUMPTION — ENTERING INTO DIFFICULTY.

1. In a prosecution for murder, where the plea was self-defense, there was evidence that, at the time defendant shot deceased, he was being pursued by him and an angry crowd, one of which had an open knife in his hand, another a pistol, and others bricks. Held, that an instruction that the jury must acquit if defendant had reasonable cause to believe "deceased" was about to kill him was too narrow, since defendant, if he believed any of the crowd were about to kill him, had the right to shoot and kill any of them.

2. Where an instruction which enlarges an instruction given, by calling attention to the law on a certain state of facts, is properly refused, because of its lack of clearness, it is equivalent to a request to instruct thereon.

3. One who abandons a conflict, but thereafter renews it, or voluntarily enters into it to wreak his malice, cannot rely on the theory of self-defense.

4. Flight by one accused of a crime, for the purpose of avoiding arrest and prosecution, raises a presumption of guilt.

5. The voluntary entering into a difficulty is not an ingredient of a homicidal act, unless done for the purpose of wreaking malice or of taking advantage of an antagonist, and taking his life or doing him great bodily harm.

Appeal from criminal court, Jackson county; John W. Wafford, Judge.

William Adler was convicted of murder in the second degree, and he appeals. Reversed.

Blake L. Woodson and I. B. Kimbrell, for appellant. The Attorney General and Sam. B. Jeffries, for the State.

BURGESS, J.

Defendant was tried and convicted of murder in the second degree, and his punishment fixed at 10 years' imprisonment in the state penitentiary, for having, with malice, shot with a pistol, and killed, one William Johnson. He was indicted, tried, and convicted in Jackson county, where the crime was committed. From the judgment and sentence, he appealed.

Briefly stated, the facts as disclosed by the record are that about 5 o'clock on the evening of May 2, 1897, defendant and deceased engaged in a quarrel near the crossing of Sixth and Broadway streets, in Kansas City, Mo., during which Adler ran Johnson across Sixth street, then west on the same street; Adler pulling off, as he went along, a piece of plank, from three to four feet in length, from a board fence or advertisement sign. Johnson ran into an alley, and picked up some pieces of bricks, which he began throwing at Adler, and with one of them struck him on some part of the body. When Adler saw Johnson picking up the pieces of brick, he retreated, and ran into a grocery store, being pursued by Johnson, and another man, who had a knife open in his hand. In the meantime a large number of persons had gathered upon the scene, yelling, "Hit him!" "Head him off!" "Catch him!" etc. Adler remained in the store but a very short time, when he returned to the street, with a revolver in his hand. There were then present about 200 persons, whites and blacks, the latter largely preponderating. Johnson was a negro. When Adler came out of the store, some one present informed Johnson that he had a gun, and was going to shoot. Johnson was then from 80 to 90 feet from Adler, and began running, when Adler took after him, and fired two shots at him from a pistol, the second of which entered the left back, between the tenth and eleventh ribs, passing through the upper end of the left kidney, ranging slightly upward, passing through the right lower lobe of the right lung, from the effects of which he died within five minutes. There was some evidence tending to show that, at the time of the shooting, a large number of the persons present were pursuing defendant, among them the deceased, at least one of them with an open knife in his hand, and another with a pistol, when defendant turned and fired upon deceased. Soon after the shooting occurred, defendant went to Kansas City, Kan., and, when arrested that evening, denied being a party to the difficulty. He entered the plea of self-defense. The court instructed for murder in the first and second degrees, manslaughter in the fourth degree, and self-defense. The grounds upon which a reversal of the judgment is sought are the giving of erroneous instructions on behalf of the state, the refusal of legal and proper instructions asked by defendant, and the use of improper language by the prosecuting attorney in the argument of the case before the jury.

But three of the state's instructions are criticised, — the tenth, eleventh, and fourteenth. They are as follows: "No. 10. The court instructs the jury that if you find from the evidence that the defendant shot and killed William Johnson, but shall further find that at the time the defendant killed William Johnson, that he believed, and had reasonable cause to believe, that William Johnson was about to kill him, or to do him some great bodily harm, you will acquit him. It is not necessary that the danger should have been actual and about to fall on the defendant, but it is necessary that the defendant should have believed that it was actual and about to fall on him at the time he fired the fatal shot, if he did so, and that he then had reasonable cause to believe it was actual and about to fall on him. It is no defense if he did in fact believe William Johnson was about to kill him or do him some great bodily harm, unless at the time he so fired the fatal shot, if he did so, he had reasonable cause to believe, and did believe, that William Johnson was at that time about to kill or do him some great bodily harm. As to whether or not the defendant had, at the time he fired the fatal shot, reasonable cause to believe,...