State v. Bartlett

• Decision Date: 16 December 1902
• Citation: State v. Bartlett, 170 Mo. 658, 71 S.W. 148, 59 L.R.A. 756 (Mo. 1902)
• Court: Missouri Supreme Court
• Parties: STATE v. BARTLETT.

71 S.W. 148

170 Mo. 658

STATE v. BARTLETT.

Supreme Court of Missouri, Division No. 2.

December 16, 1902.

HOMICIDE — SELF-DEFENSE — EVIDENCE — SUFFICIENCY—DUTY TO RETREAT—INSTRUCTIONS—JUSTIFICATION OF ASSAULT BY DECEDENT—INFORMATION — AMENDMENT AFTER CHANGE OF VENUE.

1. Evidence in a prosecution for murder held to show that the killing was in self-defense, requiring the court to give the jury a peremptory instruction to find defendant not guilty.

2. A person who, when assailed, is in a place where he is lawfully entitled to be, is not bound to retreat before exercising his right of self-defense.

3. A person may resist a public whipping, and, if his physical inferiority to the assailant prevents a resistance, he may use a weapon with which to defend himself.

4. Where, in a prosecution for murder, there was no evidence that defendant had circulated slanders about decedent's brother in order to provoke decedent to attack him, an instruction that, though deceased first assaulted defendant, yet if defendant, with preconceived malice, and in order to have an excuse for killing decedent, made false statements concerning the latter's brother, and so provoked decedent to attack him, defendant would be guilty of murder in the first degree in case he killed decedent, though the latter made the first assault, and no matter how severe the attack might have been, was erroneous.

5. The instruction was also erroneous as abrogating all rights of self-defense.

6. Mere slanderous words of a person's brother do not justify such person in assaulting the slanderer.

7. Where, in a prosecution for murder, defendant pleaded self-defense, an objection by defendant to evidence of his slanders of decedent's brother,—offered for the purpose of showing an excuse for decedent's threatening and first assaulting defendant,—that it was incompetent, immaterial, and irrelevant, was sufficient.

8. The evidence, in a prosecution for murder, of slanders of decedent's brother circulated by defendant, was only admissible on behalf of defendant to show threats made by decedent, and their basis and conditions.

9. An information cannot be amended in the county in which the criminal case is pending after a change of venue has been granted, but the amended information must be filed in the original county.

Appeal from circuit court, Lewis county; E. R. McKee, Judge.

E. Russell Bartlett was convicted of manslaughter, and appeals. Reversed.

Blair, Marchand & Rouse, for appellant. The Attorney General and Sam B. Jeffries, for the State.

SHERWOOD, P. J.

Prosecuted on information filed in the Scotland circuit court for the murder of Wm. D. Edwards, on change of venue to Lewis county defendant was found guilty of manslaughter in the fourth degree, and his punishment assessed at two years in the penitentiary. The amended information filed in Lewis county by the prosecuting attorney of Scotland county charged the crime to have been done by shooting Edwards to death with a revolver. The testimony in the bill of exceptions in this cause covers nearly 700 typewritten pages. Of course, there is no manner of necessity for covering such an immense acreage of space as this transcript covers. The whole meat of this case can, by proper condensation, find ample room in a transcript of 100 pages or less. The controlling facts in this cause are few and simple, but the controlling facts were not allowed to control in this instance, as will presently be seen.

E. Russell Bartlett, the defendant, is something past middle age, almost blind by reason of nearsightedness and chronic weakness of the eyes, very frequently afflicted with rheumatism, and so very badly ruptured that often he would be in a dangerous condition for hours together, and would have to have immediate medical attention and relief. His eyesight was so short in its range that the paper he would read, he would have to hold within three or four inches of his eyes, and friends and relatives whom he would meet in the street or at home he could not recognize, only at a short distance,—three or four feet, and but little further, and then only when the light was back of the person seeking recognition. But he could recognize persons by their voices, and by addressing him as they met or passed him on the street was the usual and customary way his friends and acquaintances had of apprising him of their presence and identity. It crops out in several places in this record that defendant had enemies, who, it appears, were some of those or else friendly to those men, several of whom, for their misdeeds and forged deeds, defendant had assisted in prosecuting and in placing them in positions of absolute security in adjoining states to ours. Defendant had been swindled out of some $750 by reason of a forged mortgage, and after that seemed fully determined on giving to men who dealt in such wares a vigorous and incessant prosecution. Realizing how bitter his enemies were, and how helpless was his condition, both because of defective vision, as well as other more serious physical defects, already mentioned, he sent for his nephew, Bliss Glaze, a boy about 18 years old, who lived a few miles from Memphis, to come and stay with him and his family at his house, and be "eyes" for him, so as to notify him of approaching danger, and also to assist in case of attack. This was some three weeks before the occurrence which gave origin to the present prosecution. Defendant's wife was also seemingly apprehensive or cognizant of danger threatening him, for she let her nephew have some money with which to purchase a revolver, which he wore as he accompanied his uncle around the town of Memphis, and wore it regularly after the assault made on his uncle by Wm. D. Edwards at the Reveille office on the 5th of March. At the foot of the stairway, on the street, Wm. D. Edwards, when he came down from the Reveille office, bawled out to defendant, who, having left that office, was then going up street, "G____d d____ you, Bartlett! I'll get you yet." To other persons, on the next day after the scene in the Reveille office, Wm. D. Edwards said Scotland county was not big enough for both him and defendant to live in. To another witness he said he was going to run a big bluff on defendant, etc. Other threats of various kinds had been made by Wm. D. Edwards against defendant, and of these he had been warned on several occasions. All of these threats were based on the failure of defendant to make retraction of a certain statement defendant had made of Jno. A. Edwards, a brother of Wm. D. Edwards, being in jail or in the penitentiary at Fairfield, Iowa. Sometimes these threats were to the effect that, if defendant did not retract the statement he had made about the brother of Wm. D. Edwards, the latter would "horsewhip him, just so as to disgrace him a little bit." Sometimes the threats were, "If he don't retract, I'll beat hell out of him." Sometimes the threat became murderous in its fierceness, to the effect "that, unless he takes it back, I'll take my knife and cut the son of a b____ to pieces." At other times Wm. D. Edwards made similar threats about using a revolver on defendant; stating he had one, and a knife. Sometimes Wm. D. Edwards, being told that it would be dangerous to crowd on defendant, a crippled and weakly man,—that he would shoot,—he replied, "the boys says he won't." Being told that he had better not assault defendant; that, in any event, he would be fined for doing so,—replied that "There's no danger of being fined in Memphis for beating Bartlett." This last remark shows very clearly that the current of public feeling in Memphis (or at least that Edwards thought so) was evidently flowing against defendant. This fact is further exemplified by the additional fact that when Wm. D. Edwards, with a revolver in his pocket, was lying in wait for defendant on the 6th or 7th of March, and telling witness what he would do, etc., after finding Bartlett did not pass by he gave his revolver to a companion and went away. Defendant, at the meeting in the Reveille office, had admitted to Wm. D Edwards that his brother was at Wichita, and not in the penitentiary, but refused to sign the retraction tendered him, because, as he said at the time, it was not a fair statement. What were the contents of that paper is like locating the grave of Moses. Defendant also, after going to Wichita, where he saw Jno. A. Edwards, said some time in December or January, after his return, that Jno. A. Edwards was not the man. Some persons, it seems, who knew Jno. A. Edwards when he formerly lived in Scotland county, had told defendant that a photograph of Brown or Bouner, etc., was a picture of Jno. A. Edwards, and thus defendant was led into error by such misinformation. And defendant, complying with a request from Jno. A. Edwards to that effect, sent for the Hydes, who, it seems, were cousins of Jno. A. Edwards, frankly confessed his error, apologized for it, and requested them to inform Wm. D. Edwards of the apology; but whether this message was ever delivered, does not appear. To several other persons, defendant made similar statements, and requested them to tell his friends of what he had acknowledged. On or about 1:30 in the afternoon of March 8th, defendant, who had been suffering for two months with severe hemorrhage of the bowels, and almost in a state of nervous prostration, at the request of his wife, because it was raining a little, and he had recently suffered from rheumatism, took his daughter's umbrella, which she brought him (as she and a companion wished to use his), and started downtown, accompanied by his nephew, Glaze. This umbrella, which defendant carried in his hand, had a half-crooked handle, such as umbrellas usually have, and could readily be taken for a cane, were only the handle seen. On arriving downtown, as defendant and his nephew were approaching his office, or at least in the near vicinity of it (Wm. D. Edwards,...