State v. Ballance

• Citation: 106 S.W. 60,207 Mo. 607
• Parties: STATE v. BALLANCE.
• Decision Date: 10 December 1907
• Court: United States State Supreme Court of Missouri

106 S.W. 60

207 Mo. 607

STATE v. BALLANCE.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. HOMICIDE — INFORMATION — SUFFICIENCY.

An information for murder, which charges "that defendant made an assault on decedent, and did willfully," etc., "shoot off a revolving pistol loaded with gunpowder and leaden balls, which defendant had in his hand, at and against decedent, and with the pistol and balls did feloniously, etc., strike, penetrate, and wound decedent in a vital part of his body, giving to him with the pistol aforesaid and the gunpowder and leaden balls aforesaid a mortal wound," etc., sufficiently alleges that the mortal wound was inflicted by and as a result of the assault, though not employing the words "thereby giving," but others of similar import.

2. INFORMATION — REQUISITES — AUTHORITY TO FILE.

An allegation in the charging part of an information that the prosecuting attorney "upon his own knowledge, information, and belief, and under his oath of office as such prosecuting attorney, now here informs the court," etc., is sufficient without an allegation of his title to the office and his compliance with all the prerequisites to his right to perform its duties.

3. HOMICIDE — TRIAL — INSTRUCTIONS — INSTRUCTION ON MANSLAUGHTER IN MURDER CASE.

In a murder case, where the state's evidence tended to show accused guilty of first or second degree murder, and the testimony of accused, which tended to prove that he was acting in self-defense, showed no personal violence of decedent towards him, but only that decedent used insulting and opprobrious language towards him, a failure to charge on manslaughter was not error, especially where the court was not requested to do so, since mere words, however insulting, do not amount to such a provocation as will reduce a homicide from murder to manslaughter.

4. SAME — MURDER — OPPROBRIOUS WORDS — KILLING IN HEAT OF PASSION.

Mere words or epithets, however opprobrious or insulting, cannot justify the killing of the person who uses them, but his killing by one while in a violent passion aroused by such language, though not deliberate, is murder in the second degree, if done willfully, premeditatedly, and of malice aforethought.

5. SAME—TRIAL—INSTRUCTIONS.

In a murder case, where decedent was shot and killed in a field which he had rented from accused and in which the crop was still standing, a charge that threats alone will not justify an assault, but, if decedent had made threats against accused, and if at the time of the difficulty he indicated by act or speech his intent to then carry the threats into execution by killing accused, etc., then the threats could be considered with the other circumstances in determining decedent's purpose and the reasonableness of accused's apprehension of his safety at the time of the killing, but, notwithstanding decedent's threats, he had a right to be in the field to transact his affairs, and if while so doing he did not seek or bring on the difficulty, but if accused was the aggressor, then the threats did not constitute an excuse for the killing— is not objectionable as in effect telling the jury that decedent had a right to go into the field and assault accused.

Appeal from Circuit Court, Maries County; Wm. H. Martin, Judge.

George W. Ballance was convicted of murder in the second degree, and appeals. Affirmed.

Watson & Holmes and Jos. J. Crites, for appellant. The Attorney General and N. T. Gentry, for the State.

GANTT, J.

At the October term, 1905, of the circuit court of Maries county, the prosecuting attorney of said county filed the following information in said court: "State of Missouri, Plaintiff, v. George W. Ballance, Defendant. Leslie B. Hutchinson, prosecuting attorney within and for the county of Maries and state of Missouri, upon his own knowledge, information, and belief, and under his oath of office as such prosecuting attorney, now here informs the court that George W. Ballance, at the county of Maries and state of Missouri, on the 22d day of September, A. D. 1905, in and upon one Jasper Copeland then and there being feloniously, willfully, premeditatedly, deliberately on purpose and of his malice aforethought did make an assault, and with a dangerous and deadly weapon, to wit, a revolving pistol, loaded then and there with gunpowder and leaden balls, which he, the said George W. Ballance, in his hands then and there had and held at and against him, the said Jasper Copeland, then and there feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did shoot off and discharge and with the revolving pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought did shoot, strike, and penetrate and wound him, the said Jasper Copeland, in and about a vital part of the body of him, the said Jasper Copeland, giving to him, the said Jasper Copeland, at the said county of Maries and state of Missouri, on the 22d day of September, A. D. 1905, with the dangerous and deadly weapon, to wit, the revolving pistol aforesaid, and the gunpowder and the leaden balls aforesaid in, and upon the left breast of him, the said Jasper Copeland, one mortal wound of the width of about one-half inch and the depth of about eight inches, of which said mortal wound he, the said Jasper Copeland, at the county of Maries and state of Missouri, on the 22d day of September, A. D. 1905, then and there of the mortal wound aforesaid, instantly died; and so Leslie B. Hutchinson, prosecuting attorney aforesaid, upon his oath as such prosecuting attorney, and his own knowledge, information, and belief aforesaid, does say that he, the said George W. Ballance, him, the said Jasper Copeland, in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately on purpose, and of his malice aforethought at the said county of Maries and state of Missouri on the 22d day of September, A. D. 1905, did kill and murder, against the peace and dignity of the state. Leslie B. Hutchinson, Prosecuting Attorney. Leslie B. Hutchinson, being duly sworn, upon his oath, says that the matters and facts stated in the above and foregoing information are true according to his best knowledge, information and belief. Leslie B. Hutchinson. [Seal.] Subscribed and sworn to before me this 2d day of October, A. D. 1905. L. N. Hawkins, Circuit Clerk." The defendant was arrested and was duly arraigned on the same day, and the case was continued until the April term, 1906. At the April term, 1906, to wit, August 9, 1906, the defendant was put upon his trial and convicted of murder in the second degree, and his punishment assessed at 14 years in the state penitentiary. And, after unsuccessful motions for new trial and in arrest of judgment, the defendant was duly sentenced in accordance with the verdict of the jury, and from that sentence he appeals to this court.

The state's evidence tended to prove that the deceased married a daughter of a brother of the defendant, and that the defendant and the deceased were farmers. In the spring of 1905 the defendant rented a farm to the deceased, and the latter was to pay one-third of the crops as rent therefor. About a week prior to the day of the homicide the deceased made an arrangement with one Spencer to meet him on this rented place on the 22d of September, to trade corn for a horse; Spencer desiring to look at the crop of corn before trading. On the 22d of September the defendant and his son were in this field, cutting corn, when the deceased came into the field, and walked up near where they were at work. The deceased had been at work that day on another place and in an opposite direction from his house, and in returning to his house passed through this cornfield where the defendant was. The deceased had a corn knife with a gunny sack wrapped around it which he was carrying on the elbow of his left arm, and a bunch of grapes in his left hand. Two persons in passing near the said cornfield that afternoon heard three pistol shots in the direction of the place where the body of the deceased was afterwards found. Later on in the afternoon Ed Ballance, who was a brother of the defendant and the father-in-law of the deceased, went over to where the deceased's body was lying, and found that the deceased had been shot twice, and was lying on his back. The gunny sack was still wrapped around the corn knife, and both were under the body of the deceased. The bunch of grapes was under his left hand. The ground being soft, there was no difficulty experienced by this witness and Gibson, Hodges, and Bede, who came over later, in seeing the tracks along the ground. These tracks led from the place where the deceased entered the field and up close to where the defendant and his son were at work. The deceased's tracks further led past where the defendant was at work, and into some corn that was still standing and up to the body of the deceased. Tracks made by the defendant, which were smaller...