State v. Bidstrup

• Decision Date: 14 November 1911
• Citation: 237 Mo. 273,140 S.W. 904
• Parties: STATE v. BIDSTRUP.
• Court: Missouri Supreme Court

140 S.W. 904

237 Mo. 273

STATE v. BIDSTRUP.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

1. CRIMINAL LAW (§ 437) — EVIDENCE — PLAT.

A plat of the location of a difficulty was properly excluded, where it was so inaccurate that it would have been confusing rather than helpful.

2. CRIMINAL LAW (§ 1159) — VERDICT — EVIDENCE — REVIEW.

Where there is substantial evidence to prove an offense charged, a conviction will not be disturbed on appeal.

3. CRIMINAL LAW (§ 1134) — APPEAL — SUFFICIENCY OF EVIDENCE.

On appeal from a conviction, the Supreme Court in determining the sufficiency of the evidence is not limited to the testimony offered by the adverse party, but will consider all the evidence offered in the case without regard to the party by whom it is introduced.

4. CRIMINAL LAW (§ 824) — INSTRUCTIONS — STATUTES.

Rev. St. 1909, § 5231, provides that, whether requested or not, the court must instruct the jury in writing on all questions of law arising in the case which are necessary for their information. Held that, under such mandate, the court in a prosecution for mayhem was bound to charge on self-defense, where such issue was raised by the evidence of prosecutor, though denied by and inconsistent with the evidence offered by defendant himself, under the rule that self-defense, though an affirmative defense, may arise as an issue in the case on evidence introduced by the state.

5. MAYHEM (§ 6) — SELF-DEFENSE — EVIDENCE.

Prosecutor testified that on the night of the difficulty he saw a man approaching the door of his house, and on his walking away followed him halfway across a field, when a shot was fired close to him; that defendant then called prosecutor by name and told him not to come further or he would shoot again, but prosecutor, without speaking, continued to advance on defendant, when the second shot was fired, by which prosecutor was injured; that he then heard defendant getting over a wire fence into the road, where prosecutor also went, and where they grappled, and fell to the ground. Defendant testified that while they were fighting prosecutor cut him with a knife, when defendant cut prosecutor. Held that, when defendant fired the shots, he had reasonable cause to believe that he was in immediate danger of great personal injury, and hence the facts were sufficient to raise the issue of self-defense.

6. MAYHEM (§ 6) — SELF-DEFENSE — QUESTION FOR JURY.

In a prosecution for mayhem, evidence held to require submission of the question whether defendant had reasonable cause to apprehend immediate danger of death or great bodily harm, to the jury.

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

Bruce Bidstrup was convicted of maiming and wounding another by shooting him with a shotgun, and he appeals. Reversed and remanded.

C. D. Corum and W. M. Williams, for appellant. E. W. Major, Atty. Gen., and Campbell Cummings, Asst. Atty. Gen., for the State.

KENNISH, P. J.

At the May term, 1910, of the circuit court of Cooper county, appellant was convicted of maiming and wounding one Elmer Brubaker, by shooting him with a shotgun. The punishment assessed was a fine of $1,000 and imprisonment in the county jail for one year. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed to this court.

The testimony adduced at the trial showed the following facts, concerning which there was no material dispute: Brubaker and the defendant both lived on what is known as the Warsaw and Booneville Road, in Cooper county. This road runs along the west side and the north end of a 20-acre tract of land owned by Brubaker. This tract is 80 rods long and 40 rods wide. Brubaker lived near the southwest corner of the tract, and the defendant near the northeast corner thereof. The residence of W. H. Varner is located near the northwest corner of the tract, on the north side of the road running east toward the defendant's home. Shortly after 7 o'clock p. m. on November 13, 1909, W. H. Varner, his son-in-law, and another young man were at the Varner home. They heard two reports of a gun and very soon thereafter heard some person call Mr. Varner. The person calling seemed to be in distress. The night was very dark, and the three men procured a lantern and went in search of the person who had called Mr. Varner. At a point in the road, about midway between Varner's front gate and the home of the defendant, they found Brubaker lying in the road. He was lying with his body across a shotgun that was shown to belong to the defendant, and was in great distress and was bleeding profusely from his injuries. He had been cut in the cheek with a sharp instrument and shot in the legs, below the knees, with a shotgun. He was carried to the Varner home and there cared for during the night. As a result of the wounds in his right leg, which became gangrenous, his leg was amputated on the following day.

There was no eyewitness to the shooting. Except as to the fact that Brubaker's injuries were inflicted by the defendant, the testimony of Brubaker contradicts the testimony of the defendant as to almost every fact and circumstance leading up to and connected with the encounter between the two.

Brubaker's account of the affair was as follows: About 7 o'clock p. m., on the day in question, he was at his own home and went to the barn to turn his horses out for the night. As he returned from the barn he saw a man pass between him and his kitchen window. He walked around to the north side of the house to see if the man was going to his front door. He did not find the man at the front door, but heard him climbing over the fence into the orchard, which was immediately north of his house He followed into the orchard and called out, "Hello." He received no response, but heard the man running in a northerly direction and ran after him. After they had run north for some distance, the man changed his course to a northeasterly direction. Brubaker then changed his course to the northeast and kept somewhat to the east of the man he was pursuing. When the two reached a point near the north end of the 20-acre tract, and near the point where Brubaker was found lying in the road, Brubaker could not see or hear the other man and turned and started in a southwesterly direction toward the point where he had last heard him. Just as he started in that direction a shot was fired. It seemed to him that something had exploded almost under his feet, but he did not then realize that he had been shot. Just after the shot was fired, he heard the defendant say, "Go back, Elmer, or I will shoot you again." He took about two steps in the direction from which he heard the defendant's voice, and another shot was fired. At the time each of the shots was fired he was moving in the direction of the defendant. He was then near the wire fence that separated his land from the road and heard the defendant climbing over or through the wire fence. He climbed over the fence to the east of where he heard the defendant in the fence. Just as he got out in the road the defendant rushed upon him from the west and struck at him with the shotgun. He grabbed at the gun and it fell to the ground. They then clinched, and both fell to the ground fighting. The defendant drew his knife and cut him in the face, and he (Brubaker) then called to Varner for help. When he called to Varner the defendant arose and ran east toward his home.

The defendant, in his testimony, gave the following version: Prior to November 13, 1909, some person had entered his house, and several times prior to that date some person had been prowling about his home at night. He made preparations to watch his premises and find out who was prowling about his place at night. About 50 feet southeast of his house he built a pen out of sticks of firewood. On the night in question, about 6:30 p. m., he secreted himself in this pen, armed with a double-barreled shotgun, to watch for the trespasser. There was a window in the south side of his house and a lighted lamp near the window on the inside. When he had been waiting in the pen about 30 minutes, he saw a man come to this window, and peer through it into the house. He could distinguish the form of a man, but could not recognize him. The man backed off a few steps, crouched down, and remained in a crouching position for a short time, and then arose and walked around to the other side of the house. In a moment he returned, walked up close to the window, and stood looking into the house through the window. The defendant then aimed the gun at the man's legs and fired. The man turned around two or three times as if startled and confused and then ran west toward defendant's front gate. Defendant ran to the point where the man had been standing, called to him to stop, and, as he heard him still running, fired again in the direction the man had run. The defendant, carrying the gun, ran toward the gate. Just before he reached the gate the man ran against it, and the defendant ran up to him, and then for the first time recognized him as Brubaker. Defendant struck at him with the gun and then dropped the gun and grappled with him. They fell to the ground, and a struggle ensued with first one and then the other on top. Brubaker drew his knife and cut the defendant on the hand, after which defendant drew his own knife and began cutting at Brubaker. Defendant realized that if the fight continued he must either kill Brubaker or be killed, and for that reason abandoned the conflict and ran back to his house, leaving his gun lying on the ground where it had fallen. All of this happened inside of defendant's yard. Defendant went into his house and did not go outside again until the following morning.

The wives of Brubaker and the defendant were introduced as witnesses, and each testified to facts tending to corroborate her husband.

A large number of witnesses testified on each side of the case. Their testimony was chiefly as to...