State v. Beckner

• Decision Date: 06 March 1906
• Citation: 194 Mo. 281,91 S.W. 892
• Parties: STATE v. BECKNER.
• Court: Missouri Supreme Court

91 S.W. 892

194 Mo. 281

STATE v. BECKNER.

Supreme Court of Missouri, Division No. 2.

March 6, 1906.

1. HOMICIDE — DEFENDANT AS WITNESS — IMPEACHING EVIDENCE — CHARACTER OF ACCUSED.

While, when defendant in a criminal case testifies in his own behalf, he may be impeached, like any other witness, by evidence of a bad moral character generally, yet, in a homicide case in which the defense is self-defense, evidence of the general reputation of defendant for peace and quietness or turbulence and violence is not evidence to impeach him as a witness, but as a defendant, which is not admissible till he has put his character in issue.

2. CRIMINAL LAW—CHARACTER OF ACCUSED— ADMISSION OF EVIDENCE—WAIVER OF ERROR.

Defendant, in a homicide case, does not waive his objection and exception to evidence assailing his character for turbulence and violence, introduced to impeach him as a witness, by offering evidence to disprove the same.

3. WITNESSES—CHARACTER WITNESS—CROSS-EXAMINATION.

While the state may test the knowledge of a witness as to the general reputation of defendant, by inquiring of him if he had heard of conduct tending to show he was not the peaceable, law-abiding man that witness' testimony has tended to prove him, it may not go into all the details as to the number of shots fired at a certain house.

4. CRIMINAL LAW—SELF-DEFENSE—EVIDENCE IN REBUTTAL.

Where defendant in a murder case, whose defense is self-defense, has given testimony tending to show the great disparity in size and weight between him and deceased, the state may show the health and physical condition of deceased before and at the time of the killing.

5. HOMICIDE—EVIDENCE—THREATS.

Defendant in a homicide case may, after and in connection with evidence of threats by deceased on the night of the killing, show that several weeks before deceased said that, if defendant kept on going with the girl, with whom he was at the time of the killing, he would get killed or kill some one over her.

6. SAME—SELF-DEFENSE—INSTRUCTIONS.

An instruction in a homicide case, that, unless the facts constituting reasonable cause to believe that his life was in imminent peril had been established by the evidence, defendant could not be acquitted on the ground of self-defense, though the jury believed that defendant thought he was in danger, is proper; it simply meaning that it was not enough to support the plea of self-defense that defendant "believed" his life was in such danger, but that, as must appear from the evidence, he must have had reasonable cause to apprehend such danger.

Appeal from Criminal Court, Jackson County; John W. Wofford, Judge.

Charles Beckner was convicted of murder, and appeals. Reversed.

Boyle, Guthrie & Smith and J. S. Brooks, for appellant. Frank Blake, Atty. Gen., and I. B. Kimbrell, for the State.

GANTT, J.

This is a prosecution for murder begun by the filing of an information in the criminal court of Jackson county, by the prosecuting attorney of said county, wherein he charges the defendant with having, on the 1st day of January, 1905, at the county of Jackson, in the state of Missouri, willfully, feloniously, deliberately, premeditatedly, on purpose, and of his malice aforethought, shot and killed Charles Brown. The defendant was duly arraigned and entered his plea of not guilty. On the 8th day of May, 1905, defendant was put upon his trial, and on May 12, 1905, the jury returned its verdict finding him guilty of murder in the second degree, and assessing his punishment at imprisonment in the state penitentiary for a term of 50 years. Motions for new trial and in arrest of judgment were filed in due time, heard, and overruled, and thereupon the defendant was sentenced in accordance with the verdict of the jury, and now prosecutes his appeal from the said judgment and sentence.

The homicide occurred on the 1st day of January, 1905, at the house of Morgan Smitson, in the city of Independence in Jackson county, Mo. The killing of Brown by the defendant was admitted. The defense interposed was self-defense. The killing was done with a 32-caliber revolver, and occurred about 1 o'clock in the morning at the dance which was then in progress at the residence of Smitson. The defendant Beckner had accompanied a young girl by the name of Minnie Hook, about 15 years of age, to the dance. The defendant himself was between 17 and 18 years old at the date of the homicide, and weighed about 123 pounds. The deceased, Charles Brown, was about 24 years old, a teamster, and weighed, when well, about 200 pounds, and was about 6 feet high. The evidence tends to show that Brown came to the dance somewhat later than most of the young people, and that he did not participate in the dancing, but sat in the room where the dancing was done. The evidence tended to show that the defendant and Brown were slightly acquainted. There was no evidence of any previous quarrel or ill will between the defendant and the deceased, Brown. About 1 o'clock in the morning Miss Minnie Hook notified the defendant that she was ready to go home, and she said he went upstairs to get their wraps preparatory to leaving the house. These stairs opened directly into a middle room downstairs. In this middle room, at this time, the deceased, Brown, together with O. F. Bolan and Clarence Leftwich were seated together on the edge of a dresser. Miss Minnie Hook came down the stairs with defendant immediately behind her and passed toward and in front of the deceased, Brown. As she passed, the deceased asked her "if she was going home," according to the testimony of the witnesses for the state; but, according to the witnesses for the defendant, he asked her "if the defendant was making her go home." All the witnesses agree that this remark was made to the young lady in a polite and gentlemanly manner, and was not made to the defendant at all. Thereupon the defendant stepped in front of deceased, and within two or three feet of him (the deceased still remained seated on the dresser), and said to deceased: "What is it to you, you big son of a bitch?" The defendant testifies that he said to him: "You keep your big mouth out of it." The defendant's brother, Jacob, says the defendant said: "Keep your damn head out of it." They all agree, however, that up to this time the deceased had not said a word to the defendant, and had remained seated on the dresser. When the defendant thus spoke to the deceased, the latter arose from the dresser and said: "Don't call me a big son of a bitch"—or words to that effect. A scuffle then ensued, and the deceased took hold of the defendant. There is a sharp conflict at this point. The testimony on the part of the state's witnesses in the case was to the effect that the deceased took hold of the defendant by the arms and seemed to be holding him in order to prevent the defendant from pulling his pistol from his hip pocket; whereas, on the part of the defendant, the evidence tended to show that the deceased, Brown, grabbed the defendant by the throat and was choking him and pushed his head back, and backed him across the room, and that, in this position, the defendant pulled his pistol out of his right-hand hip pocket and shot Brown through the abdomen. He shot twice; one shot missing the deceased, and the other penetrating his body to the backbone, from which wound Brown died in a very few minutes. There was no evidence that the deceased was armed in any way. After the shooting, the defendant hurried away from the house to the home of Miss Hook, and, after leaving her, he went to the Missouri Pacific railroad yards where he took a freight train, on which he rode to Lee Summit. He went to the home of his aunt, and from there went out in the country to visit another aunt, eight miles east of Lee Summit, at which latter place he remained about a week, when he returned to Kansas City and gave himself up. At the close of the defendant's evidence in chief, the state offered various witnesses for the purpose of impeaching the general reputation of the defendant for peace and good order, and to show that his general reputation was that of a violent, turbulent, and dangerous man, over the objections and exceptions of the defendant. Thereupon the defendant offered evidence on his part tending to prove that his general reputation was that of a quiet, peaceable, law-abiding citizen. The other facts and the instructions will be noted in the course of the opinion.

1. Various errors are assigned for the reversal of the judgment herein; but the most important and serious question raised by the defendant is as to the action of the court in permitting the prosecuting attorney, over the objection of the defendant, to call various witnesses, and to propound to them this question: "Do you know the general reputation of the defendant for peace and quietness, or turbulence and violence, in the neighborhood where he lives?"

In this state, from a very early period, it has been the uniform rule of decisions that the character of a defendant, charged with a criminal offense, cannot be assailed by the state until the accused has offered proof as to his character, or, in other words, put his character in issue. State v. Creson, 38 Mo. 372; State v. Martin, 74 Mo. 547; State v. Palmer, 88 Mo. 568; State v. Hart, 66 Mo. 208; State v. Hudspeth, 159 Mo. 178, 60 S. W. 136. And this is the general doctrine announced by trustworthy commentators on criminal law. Wharton's Criminal Evidence (9th Ed.) § 64, and cases cited; 3 Greenleaf's Evidence, § 25; State v. Hull (R. I.) 26 Atl. 191, 20 L. R. A. 609, and cases collated in the note. The criminal court, however, admitted this evidence on the ground that the defendant had offered himself as a witness, and, having done so, he occupied the position of any other witness, and was liable to be cross-examined as to any matter pertinent to issue and might be contradicted and impeached as any other witness, and subjected to the same tests. At a...