State v. Berkley

• Decision Date: 27 April 1887
• Parties: The State v. Berkley, Appellant
• Court: Missouri Supreme Court

4 S.W. 24

92 Mo. 41

The State v. Berkley, Appellant

Supreme Court of Missouri

April 27, 1887

Appeal from Boone Circuit Court. -- Hon. G. H. Burckhartt, Judge.

Reversed.

S Turner for appellant.

(1) The court erred in refusing to allow a continuance until the succeeding term of the court on the ground set forth in the motion and affidavit of defendant. Under the facts and circumstances disclosed by the affidavit, the "power of the court" for procuring the personal attendance of witnesses had not been so exhausted as to warrant the prosecuting attorney in admitting the statement of what the absent witnesses would prove, and invoking the operation of section 1886 of the Revised Statutes. Nor was the court warranted in thereupon forcing defendant to instant trial. State v. Farrow, 74 Mo. 532; State v Hickman, 75 Mo. 416. Section 1886 is an innovation upon the chartered rights of citizens on trial charged with crime. "It goes to the very verge" of article 2, section 22, of the constitution; and its invocation by trial courts in criminal cases, should be narrowly watched, and the rights of the accused jealously guarded. State v. Underwood, 75 Mo. 230. (2) The court on the trial below manifestly erred in failing to instruct the jury as to manslaughter in the third or fourth degree. The difficulty arose upon a sudden ground, the evidence tending to show that deceased drew a knife and advanced upon defendant at the time the latter struck him. If defendant, in heat of passion, induced by lawful provocation, struck deceased with a club hastily picked up, and unluckily killed him surely the court should have instructed the jury as to manslaughter; and its failure to do so is reversible error. Wharton on Homicide [5 Ed.] secs. 4, 5; State v. Branstetter, 65 Mo. 149; State v. Matthews, 20 Mo. 55; State v. Barham, 82 Mo. 672; Bishop's Crim. Law [5 Ed.] secs. 699, 701, 713; State v. Banks, 73 Mo. 592; State v. Tate, 12 Mo. App, 327. (3) The court committed error in refusing to give instructions numbered seven, eight and nine, as asked for by defendant, and in giving them as modified by the court. It is the settled doctrine as expounded by this court, that when the accused "seeks" or "provokes" or "brings on" a difficulty by some unlawful act, and then voluntarily enters into a difficulty resulting in the death of his adversary that he cannot invoke the principle of self-defence, however imminent his peril may have become. State v. Shoultz, 25 Mo. 128; State v. Dunn, 18 Mo. 419; State v. Hays, 23 Mo. 287; State v. Linney, 52 Mo. 40; State v. Underwood, 57 Mo. 40. (4) The court below erred in refusing to give instruction number eleven, of defendant's series. It fairly states the law of self-defence, in a form often passed on and approved by this court, and there was evidence on which to base it. (5) Instructions four, five, six and eight, of the series given for the state, are highly objectionable and should not have been given, at least without a proper qualification. They assume the guilt of the accused, upon insufficient hypotheses, and shift the burden of proof upon the defendant. Wharton's Am. Crim. Law, sec. 707; State v. Wingo, 66 Mo. 181, and authorities there cited.

S. C. Major also for appellant.

(1) The court committed error in ordering the trial to proceed in the absence of the witness, Hopkinson. The constitution, article 2, section 22, guarantees to the accused in all criminal prosecutions the right "to have process to compel the attendance of witnesses in his behalf." The affidavit for a continuance shows that the facts to which the absent witness, Hopkinson, would testify were first learned by defendant after the convening of the court, and that he had been unable by the exercise of reasonable diligence to invoke the aid of the court in his constitutional and statutory right to have process for the personal presence of said witness, or to take his deposition. (2) The trial court also erred in not instructing as to manslaughter in the third degree. The evidence fully warranted such an instruction, and it was the duty of the court to give it, although it was not asked for by defendant. State v. Stonum, 62 Mo. 596; State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Tate, 12 Mo.App. 237; State v. Murphy, 14 Mo.App. 73; State v. Barham, 82 Mo. 67; State v. Wilson, 85 Mo. 134. (3) The trial court committed manifest error in refusing to give instructions numbered four, seven, eight, nine and eleven, asked by defendant, and in giving instruction number seven on the part of the state.

B. G. Boone, Attorney General, for the state.

(1) An affidavit for a continuance, which does not show due diligence on the part of the defendant to secure material testimony, should be overruled. R. S., sec. 1884; State v. Miller, 67 Mo. 607; State v. Hatfield, 72 Mo. 518; State v. Underwood, 75 Mo. 230; State v. Jennings, 81 Mo. 185. (2) Instructions for lower grades of homicide are properly refused where the evidence shows the offence to be murder in the first or second degree or nothing. State v. Wilson, 4 West. Rep. 355; s. c., 86 Mo. 520; State v. Collins, 86 Mo. 245; State v. Jones, 79 Mo. 441. (3) Instructions declaring the law, as applied to the facts in the particular case, are preferable for the guidance of the jury to abstract declarations of legal principles. State v. Miller, 67 Mo. 604; State v. Little, 67 Mo. 624. The above principle is especially applicable to defendant's seventh, eighth and ninth instructions, in which the court struck out the words "by some unlawful act," and inserted in lieu thereof the words: "Unless the defendant sought or brought on the difficulty himself, by threatening to whip the deceased, or approached him in a menacing manner." (4) The eleventh instruction, asked by the defence, was properly refused, because the fifth, sixth, seventh, eighth and ninth instructions, given by the court at the instance of the state, fully and clearly declare the law as to self-defence. State v. Vansant, 80 Mo. 69; State v. McGuire, 69 Mo. 200; State v. Christian, 66 Mo. 138; State v. Brown, 63 Mo. 443; State v. Hudson, 59 Mo. 135; State v. Underwood, 57 Mo. 50; State v. Linney, 52 Mo. 40. (5) The instruction on self-defence in State v. Culler, 82 Mo. 623, has not been criticised by this court as stated by appellant's counsel.

Sherwood, J. Black and Brace, JJ., concur; the former as to paragraph one in a separate opinion; Judge Brace in toto. Norton, C. J., dissents as to all the paragraphs except number three, and Ray, J., does the like.

OPINION

Sherwood, J.

The defendant was indicted for the murder of Martin Carlos, by striking him with a club. The jury, before whom the cause was first tried, failed to agree; the second trial resulted in a conviction of murder in the second degree. The errors assigned relate to the refusal of a continuance; permitting the prosecuting attorney to admit that the absent witness, Hopkinson, would testify to the facts as set forth in the affidavit for a continuance, were he personally present; the giving and the refusing of certain instructions, and the failure to give an instruction in relation to a lower grade of offence than murder in the second degree.

I. The first point for discussion is, whether the continuance should have been granted. It showed, in the circumstances detailed in the affidavit, due diligence, and the trial court in effect so held, by calling on the prosecuting attorney to say whether he would admit, etc.; and under the strict terms of section 1886, it is requisite that the application for a continuance should be sufficient in form; should show ample grounds why the continuance should go, before that section becomes operative, and the prosecuting attorney is called upon to say whether it shall go or not.

This case, therefore, presents the question of the constitutionality of that section, and will decide how far the legislature may go counter to the organic law, and their acts still be held valid. Section 22, of article 2, of our state constitution, known as the Bill of Rights, so far as necessary to quote the same, is as follows: "In criminal prosecutions the accused shall have the right * * * to have process to compel the attendance of witnesses in his behalf." Mr. Justice Cooley, when discussing that portion of a written constitution termed a Bill of Rights, says: "It is also sometimes expressly declared, what indeed is implied without the declaration, that everything in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void. * * * While they continue in force they are to remain absolute and unchangeable rules of action and decision." Cooley Const. Lim. 36. The words of the constitution now under discussion would seem too plain for interpretation. They interpret themselves. They are to be understood according to their usual and most known signification. 1 Story Const., sec. 400. Nearly every schoolboy knows what process is, what attendance of witnesses is, and that the witnesses are to attend and testify at the place from whence the process or writ issues, and to which it is made returnable. This is the sense of the words used by the constitution, and they will admit of no other.

Does section 1886 interfere with the constitutional provision above quoted? It does. How does it do this? Just in this way It is only where the application for a continuance shows all possible diligence that section 1886 comes into play. The witness may be most important and material; his testimony may have been discovered almost on the calling of the case for trial; he may be temporarily absent from the state, and yet the continuance cannot go, without the consent of the...