State v. Aurentz

Citation263 S.W. 178
Decision Date05 June 1924
Docket NumberNo. 25254.,25254.
PartiesSTATE v. AURENTZ.
CourtUnited 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 "him to nicely measure the proper quantity of force necessary to repel the assault, and the question for you to determine is, not what you think it was necessary for the defendant to have done or not done, at the time he shot deceased, but the question is what the defendant might have reasonably believed was necessary for him to do under all the circumstances. On the other hand, it is not enough that defendant believed that the danger was real or actually impending. He must have had reasonable cause to so believe; whether or not he had reasonable cause is for you to determine under all the facts and circumstances given in the evidence. If you shall believe from the evidence that the defendant did not have reasonable cause to so believe, you cannot acquit him on the ground of self-defense, although you may believe that the defendant really thought he was in danger. You are further instructed that the sole defense in this case is that of self-defense."

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.

RAILEY, C.

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:

"On the night in question appellant and deceased, together with certain of their friends, went out from the city of Springfield to attend the dance given at Percy's Cave, riding in different automobiles and leaving Springfield at different hours. Appellant, accompanied by one Della Armstrong, and probably some others, drove out in appellant's automobile, arriving at the cave slightly earlier than the automobile in which deceased and his wife rode. Appellant parked his car, and, according to the testimony, sat in it for a few minutes, during which time one John Yancy arrived with a group of his friends and parked his car close by appellant's. It appears that all these people went down to the dance hall, except Yancy, who remained in the front seat of his car from the time he arrived until the time of the shooting. Early in the evening, the evidence shows that appellant checked a pistol with young Crow, the proprietor of the refreshment stand, and that about the hour of 11 o'clock, or just a few minutes prior to the shooting he came and got the pistol, put it in his pocket, and walked up toward the gate. Shortly prior to this, the evidence shows that the deceased and his wife, who were on the dance floor had had some personal wrangle, during which, it seems, the deceased struck her and, according to some of the testimony, knocked her down. Appellant was heard to say, prior to the time he started up the pathway with his pistol, that he intended to kill deceased, some of the testimony being to the effect that he said if they did not quit their quarreling that he would kill the deceased. Just before the shooting, and just after appellant had made this statement, Mrs. Yancy, who was dancing at the time with a relative, suddenly quit and stated that she was going up to the car and have her husband take deceased away for fear that there might be trouble. When she started toward the car at the gate, deceased followed her, and shortly, if not immediately thereafter, appellant followed the deceased. When Mrs. Yancy arrived at the car she started to tell her husband of the brewing trouble, but before she had finished appellant arrived and fired the shots that killed deceased. It is disclosed by the testimony that when appellant reached the car the deceased was standing a few feet away smoking a cigarette; that Mrs. Yancy was standing either on the ground with one foot on the running board of her husband's car, or was standing on the running board with her head inside the car engaged in a conversation with her husband; that deceased, at the time, was making no demonstration, but stood with his side toward appellant casually smoking a cigarette; that appellant walked up to his own car, laid his left hand upon the side of the car and said to deceased, `You G____ d____ s____ o____ b____; I am going to kill you;' whereupon he drew his revolver and commenced shooting. At the first shot, which did not seem to be the fatal one, it appears that deceased turned and either started to walk or run away, but that the shots were fired so rapidly that he was fatally wounded before he could much more than move out of his tracks. When the shooting was over it appears that appellant walked a few feet away, halted for a moment, and, With an oath, stated that, if there was anybody present that claimed to be any kin to deceased, they might step out. Getting no response to this, witnesses say that appellant disappeared in the darkness and was seen no more by any of the persons present until the next day. Appellant claims, however, that after the shooting he walked up and hid behind a car sonic 25 feet away from where the body of deceased was lying in the road; that while hidden appellant claims he saw John Yancy, go to the body, get down on his knees, or in a stooping posture, beside it, pull one of the arms out from under the body, and immediately arose with the gun; that he flourished this gun and declared that no one should touch the body until the coroner came. This testimony on the part of appellant was given as showing the deceased was armed at the time of the shooting and that appellant shot in self-defense. Countering this, is the testimony of John Yancy corroborated by several others, that John Yancy had a pistol in the pocket of his car; that when he first went to the body of deceased he had no pistol in Ids hand, but after discovering that deceased was dead, he straightened the body out and went back to his car in a somewhat excited state and procured his own revolver so that he could successfully meet any further trouble that might ensue."

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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