State v. Baird
| Decision Date | 26 May 1921 |
| Parties | THE STATE v. EVERETT BAIRD, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.
Reversed and remanded.
Mayes & Gossom for appellant.
(1) The court erred in failing to instruct the jury as to the good character of the defendant upon defendant's request so to do. R. S. 1919, sec. 4025; State v. Anslinger, 171 Mo. 600; State v. O'Conner, 31 Mo. 389; State v. Cook, 207 S.W. 833; State v Tender, 204 S.W. 735; State v. Byrd, 213 S.W 37. (a) And it makes no difference whether the evidence of good character was adduced by the State or the defendant. State v. Birdstrup, 237 Mo. 273. (2) The court erred in refusing defendant's request to instruct the jury on all questions of law necessary for their information in arriving at a just verdict and especially in refusing the request of the defendant to instruct the jury on circumstantial evidence. State v. Barton, 214 Mo. 316; State v. Bobbitt, 215 Mo. 10; State v. Massey, 204 S.W. 543; State v. Donnelly, 130 Mo. 643; State v. Francis, 199 Mo. 671. (3) The innocence of the defendant is presumed until his guilt is established beyond a reasonable doubt, either by direct and positive proof or by circumstantial evidence. The presumption of innocence is not overcome by mere proof that the defendant killed the deceased, when all the evidence in the case shows that he killed the deceased in self-defense. A verdict cannot stand that rests solely upon conjecture and suspicion. State v. Glahn, 97 Mo. 679; State v. Nesenhener, 164 Mo. 461; State v. Francis, 199 Mo. 671; State v. Gordon, 199 Mo. 561.
Jesse W. Barrett, Attorney-General, and J. Henry Caruthers, Special Assistant Attorney-General, for respondent.
(1) No substantial evidence of good character was adduced. State v. Byrd, 213 S.W. 37; State v. Gartrell, 171 Mo. 519; State v. Anslinger, 171 Mo. 606; State v. Cook, 207 S.W. 833; State v. Hooper, 71 Mo. 430-1. (2) The State did not seek to convict defendant upon circumstantial evidence alone, hence the refusal of the court to give such instruction is not error. State v. Babbitt, 215 Mo. 43; State v. Donnelly, 130 Mo. 649; State v. Fairlamb, 121 Mo. 147; State v. Gartrell, 171 Mo. 519; State v. Robinson, 117 Mo. 663; State v. Massey, 204 S.W. 543; State v. Crone, 209 Mo. 330.
WHITE, C. Railey and Mozley, CC., concur.
The appellant, March 23, 1920, in the Circuit Court of Pemiscot County was convicted of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for a term of fifteen years. He was charged with having killed one Will Jenkins on the tenth day of August, 1919.
Jenkins and Baird were farmers and lived near each other, their two houses being about a hundred yards apart. It seems that Jenkins was making a crop on the shares for Baird. The two men had had some difficulty; the evidence showed that each had made violent threats against the other. The houses of the two men fronted east, and it appears that a division fence, somewhere near midway between the two houses, separated their respective enclosures, Baird's house being on the south. To the rear, and a little to the north of Baird's house was his barn. North of the barn, across the fence, was Jenkins' cornfield. There was no witness to the homicide except the defendant himself. Jenkins' body, a few moments after he was shot, was found a few feet from the division fence inside his cornfield, among the cornstalks. The State attempted to show the shot which killed Jenkins was fired from a window in the loft of Bairds' crib, which window was about 18 or 20 feet south of where Jenkins' body lay. He was killed with a shotgun and according to the testimony the wounds ranged downward indicating that he was shot from an elevation. Baird admitted he killed Jenkins with a shotgun and explained to several persons who testified for the State how it occurred. It is claimed by the State that those explanations were inconsistent.
According to the evidence offered by the defendant, on the morning before the tragedy, about 8:30 in the morning, Baird went away from home to a little town called Netherlands. While he was gone his wife and Jenkins' wife had a quarrel about vegetables in the garden. It seems that the gardens of the two were enclosed together. A short time afterwards Jenkins appeared at the milk house in Baird's yard where Mrs. Baird was and abused her violently, threatening to kill the defendant. He had a shotgun at the time and went off through the field, Mrs. Baird thought hunting for her husband. Mrs. Baird then brought out her husband's shotgun and when he returned from town she told him of the altercation. Soon afterwards Jenkins appeared with his gun, apparently "stalking" the defendant, peeping around his barn as if to discover where he was. After watching for a time the defendant stepped out into the open, and after a few remarks and gestures from which appellant claimed he thought Jenkins was about to shoot him he fired the fatal shot. Eleven shot took effect in Jenkins' head, killing him instantly. Evidence was offered by defendant to prove that Jenkins was a violent, turbulent, quarrelsome character. Evidence also was offered by the State as to the defendant's character, which will be noted later in the opinion.
The evidence indicates that Jenkins fell where he lay, about 18 or 20 feet north of the window in the loft of the defendant's barn, and about five feet north of the division fence. The stalks of corn near the body showed the marks of a shot. With the view we take of the case it is unnecessary to set out the evidence at greater length.
I. The appellant assigns error to the failure of the court fully to instruct the jury on all the questions of law involved in the case. He claimed the court should have instructed in regard to circumstantial evidence. The court must instruct the jury in regard to it where the guilt of the defendant is established wholly by circumstantial evidence. Where the fact of the homicide by the defendant depends upon circumstances, such an instruction is necessary but not where the only resort to circumstantial evidence is for the purpose of showing the manner in which the homicide took place. [State v. Gartrell, 171 Mo. 489, 71 S.W. 1045; State v. Crone, 209 Mo. 316, 331, 108 S.W. 555; State v. Bobbitt, 215 Mo. 10, 114 S.W. 511; State v. Massey, 274 Mo. 578, 204, 204 S.W. 541 S.W. 543.]
In this case the defendant admitted that he killed Jenkins; nothing was left for the jury to determine from circumstance except as to who was the aggressor, and whether there was justification for the act or facts which would mitigate the crime. Such instruction in this case was not necessary.
II. Error is further claimed in the failure of the court to instruct on the good character of the defendant. The statute (Section 4025, Revised Statutes 1919), requires the trial court, whether requested or not, to instruct the jury upon all question of law arising in a criminal case which instructions must include "whenever necessary, the subjects of good character and reasonable doubt."
The defendant did not put his character in issue, offered no evidence as to good character. He took the stand in his own behalf and the State had the right to impeach him "as any other witness." [See Sec. 4036, R. S. 1919.]
The State in rebuttal recalled three witnesses: B. F. Allen, William Foley, and C. L. Lefler. Allen testified as follows, without objection:
Foley testified that he did not know the defendant's general reputation in the neighborhood in which he lived for being a dangerous, quarrelsome, turbulent character.
Lefler testified without objection, as follows:
The State had a right to show that defendant had a bad reputation for truth and veracity and that his general reputation for morality was bad, but it had no right, for the purpose of impeaching him as a witness, to show that he was of bad character as a quarrelsome, turbulent citizen. [State v Beckner, 194 Mo. 281, 294-296, 91 S.W. 892; State v. Shuster, 263 Mo. 600, 173 S.W. 1049; State v. Edmundson, 218 S.W. 865.] Such evidence did not tend to impeach the defendant in his character as a witness, but was an assault upon his character as a defendant....
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