State v. Aurentz
Citation | 263 S.W. 178 |
Decision Date | 05 June 1924 |
Docket Number | No. 25254.,25254. |
Parties | STATE v. AURENTZ. |
Court | United States State Supreme Court of Missouri |
Appeal from Circuit Court, Greene County; Orin Patterson, Judge.
George Aurentz was convicted of murder in the second degree, and he appeals. Reversed and remanded.
Instruction 6 for the accused, refused by the trial court was as follows:
"Upon the law of self-defense the jury are instructed that if the defendant, at the time he shot the deceased, had reasonable cause to apprehend, and did apprehend, that the deceased was about either to kill him or to do him some great bodily harm, and that the danger of his doing either was imminent, and that the defendant shot to avert such apprehended danger, then such shooting was justifiable, and you should acquit on the ground of self-defense. And in this connection the jury are instructed that it is not necessary, in order to acquit on the ground of self-defense, that the danger should, as a matter of fact have been real or actually impending; all that is necessary is that the defendant had reasonable cause to believe that the danger was real and about to fall upon him; and, if the defendant acted in a moment of apparently impending danger from an assault by the deceased, it was not necessary for
Harry D. Durst, Talma S. Heffernan, and Allen & Allen, all of Springfield, for appellant.
Jesse W. Barrett, Atty. Gen., and Geo. W. Crowder, Asst. Atty. Gen., for the State. Statement.
Appellant was tried in the circuit court of Greene county, Mo., on November 27, 1922, on an information filed by the prosecuting attorney of said county, charging him with murder in the first degree, in that on August 14, 1922, he feloniously, willfully, premeditatedly, deliberately, and of his malice aforethought did shoot and kill, in the county and state aforesaid, one Ernest Cameron, etc. The trial resulted in the conviction of defendant for murder in the second degree, and appellant's punishment was fixed at 25 years in the penitentiary. Motions for new trial and in arrest of judgment were filed and overruled. Judgment was thereafter rendered, sentence pronounced, and an appeal granted defendant to this court.
The scene of the homicide is laid at Percy's Cave, a dance resort, about 8 miles northwest of Springfield, Mo. The date of the shooting is fixed on August 14, 1922. The dance hall, or pavilion, was about 35 feet from a public road, and there was a steep grade from the road to the pavilion. A refreshment stand was located in one corner of the dance hall, where young Crow, a son of the owner of the place, sold refreshments and checked parcels for guests patronizing the dance. On the night of August 14, 1922, a dance was in progress at this place attended by a number of people. The cars and vehicles used by patrons of the dance were parked alongside the road in front of the gateway leading down to the hall. Appellant and deceased were brothers-in-law, the deceased having married defendant's sister. It was shown by the testimony that deceased and his wife, who was slightly his senior, indulged in more or less quarreling with each other, and this caused an ill feeling between appellant and deceased.
After examining the transcript and the testimony set out in the respective briefs, we are satisfied that the general statement of the case made by counsel for respondent is substantially correct, and hereby adopt the same as the remainder of our statement of the case, to wit:
In order to avoid repetition the instructions and rulings of the court, as far as necessary, will be considered hereafter.
Opinion.I. Appellant assigns as error the action of the trial court, in admitting, over his objection, the statement of Eva Cameron, wife of deceased and sister of defendant, made a few minutes after the shooting, to the effect that defendant "killed the deceased in cold-blooded murder."
It appears from the transcript that Mrs. Aline Yancy, wife of John Yancy, over the objection of defendant, was permitted to testify in chief, that Eva Cameron, the wife of deceased, after the shooting was over, appeared upon the scene of the homicide, and exclaimed in the presence of her brother, the defendant, "My God, George, you have killed Ernest in cold-blooded murder." Over the objection of defendant, John Yancy was permitted to testify in chief before the jury, that after the shooting, and defendant had started to leave, ...
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