State v. Brinkley, No. 39557.

CourtMissouri Supreme Court
Writing for the CourtEllison
Citation193 S.W.2d 49
Decision Date11 March 1946
Docket NumberNo. 39557.
PartiesSTATE v. ANDREW BRINKLEY, Appellant.
193 S.W.2d 49
STATE
v.
ANDREW BRINKLEY, Appellant.
No. 39557.
Supreme Court of Missouri.
Division Two, March 11, 1946.

[193 S.W.2d 51]

Appeal from Circuit Court of City of St. Louis.Hon. F.E. Williams, Judge.

REVERSED AND REMANDED.

Ivan H. Light and Victor Packman for appellant.

(1) The court's failure to give an instruction on excusable homicide due to accident was reversible error, because there was evidence to support that defense and make an issue for the jury. Accident is a defense both to murder and to manslaughter. State v. Crowley, 345 Mo. 1177, 139 S.W. (2d) 473; State v. Sumpter, 184 S.W. (2d) 1005. (2) Where required by law of the case, such instruction must be given, whether requested or not. State v. Crowley, supra; State v. Aitkens, 179 S.W. (2d) 84. (3) That duty implies necessity of giving a correct instruction. State v. Aitkens, 179 S.W. (2d) 84; State v. Bradley, 179 S.W. (2d) 98 (4) In a case strikingly pertinent on the facts an instruction on accident was given. State v. Martin, 349 Mo. 639, 162 S.W. (2d) 847; State v. Lloyd, 337 Mo. 990, 87 S.W. (2d) 481. (5) These requirements are but applications of general rule that trial courts must instruct on all issues arising on the evidence in the case, whether requested or not; and where there is any evidence to support a defense or an issue, it must be presented to the jury by an accurate instruction. Sec. 4070, R.S. 1939; State v. Shiles, 188 S.W. (2d) 7; State v. Robinson, 185 S.W. (2d) 636; State v. Burnett, 188 S.W. (2d) 51; State v. Mills, 179 S.W. (2d) 95; State v. Heath, 221 Mo. 565, 121 S.W. 149. (6) The court must do this howsoever the evidence got into the case, and though defendant rely upon inconsistent defenses or deny it. State v. Wright, 175 S.W. (2d) 866; State v. Bidstrup, 237 Mo. 273, 140 S.W. 904. (7) The statute makes homicide excusable if committed by accident in any defined case: Firstly, in doing any lawful act by lawful means, and the "lawful acts" possible under the evidence herein are set out in Assignment of Error 1A to 1D. Secondly, when committed in heat of passion upon any sudden or sufficient provocation or upon sudden combat without undue advantage being taken, or dangerous weapon used, and not done in a cruel or unusual manner. Sec. 4380, R.S. 1939; State v. Crowley, 345 Mo. 1177, 139 S.W. (2d) 473; Hincheliffe's Case, 1 Lewin C.C. 161 (this case may also be found in Horrigan & Thompson: Law of Self-Defense, pp. 125, 126, and will be found outlined in Morgan v. Durfee, 69 Mo. l.c. 476. (8) The two-word definition of "excusable homicide" in Instruction 2 ("accidental killing" of another) was inadequate; further definition of "accidental killing" was lacking. (9) The court erred in Instruction 2 in limiting definition of justifiable homicide to self-defense and in failing to inform jury that intentional killing of deceased by appellant was justifiable if done in defense of his dwelling, or of Mildred Ackman, or of her dwelling, or in resistance to a felony, or in keeping the peace, or under any of the circumstances set out in Assignments 1B to 1D, and wholly failing to inform jury in instruction 1 that self-defense or defense of Mildred Ackman, or of her dwelling, or under any of the circumstances set out in Assignments 1B to 1D, was a defense to murder as well as to manslaughter, as to all of which there was evidence to support an issue to the jury. Secs. 4070, 4379, R.S. 1939. (10) Defense of others. State v. Pollard, 159 Mo. 220, 40 S.W. 949; State v. Yates, 301 Mo. 255, 256 S.W. 809; Semayne's Case, 5 Coke 91a, 77 Eng. Rep. 194; State v. Hickam, 95 Mo. 322, 8 S.W. 252; State v. Turner, 246 Mo. 598, 152 S.W. 313; Staten v. State, 30 Miss. 619; Horrigan & Thompson: Law of Self-Defense, l.c. 753-754; Commonwealth v. Drew, 4 Mass. 391; Horrigan & Thompson: Op. Cit., l.c. 705, 709; Cooper's Case, Cro. Car. 544, 71 Eng. Rep. 1069; Curtis v. Hubbard, 1 Hill 336, affirmed 4 Hill 437; Horrigan & Thompson: Law of Self-Defense, 750; 1 Hale: Pleas of the Crown, 484. (11) Defense of dwelling. Semayne's Case, supra; State v. Raper, 141 Mo. 327, 42 S.W. 935; State v. Kennade, 121 Mo. 405, 26 S.W. 347; State v. Sinclair, 250 Mo. 278, 157 S.W. 339; 25 A.L.R. 508-563, an annotation on subject. (12) Occupant may require withdrawal of one originally in dwelling or in business property by invitation or sufferance, where he becomes obnoxious or undesirable, and may use necessary force to effect such. State v. Reed, 154 Mo. 125, 55 S.W. 278; Brinkley v. State, 89 Ala. 34, 8 So. 22; Scott v. Commonwealth, 16 Ky. L.R. 702, 29 S.W. 977; State v. Raper, 141 Mo. 327, 42 S.W. 935; 25 A.L.R. 508. (13) Defense of property other than dwelling. State v. Shiles, 188 S.W. (2d) 7; State v. Matthews, 148 Mo. 185, 49 S.W. 1085; State v. Reed, 154 Mo. 122, 55 S.W. 278; Morgan v. Durfee, 69 Mo. 469. (14) Preserving peace against intruders and roisterers. State v. Raper, 141 Mo. 327, 42 S.W. 935. (15) In resistance to commission of a felony in a dwelling or attempt to do great bodily harm. State v. Pollard, 139 Mo. 220, 40 S.W. 949; State v. Yates, 301 Mo. 255, 256 S.W. 809. (16) Statutory grounds justifying killing under apprehension of design to commit a felony or do some great personal injury does not go so far as to require apprehension of danger to life, and accused is entitled to instruction so stating. Staten v. State, 30 Miss. 619. Horrigan & Thompson: Op. Cit. 753, 754; Horrigan & Thompson: Law of Self-Defense, pp. 725-757. (17) It is the duty of every man who sees a felony about to be committed, to interpose and prevent its consummation. Pond v. People, 8 Mich. 150; Oliver v. State, 17 Ala. 587; Horrigan & Thompson; Op. Cit. 725, 728, 730; Dill v. State, 25 Ala. 15; Biggs v. State, 29 Ga. 723; Pond v. People, supra, l.c. 825; 1 Hale, Pleas of the Crown, 484. (18) Indeed, failure to do so renders person guilty of misprision of felony at common law. 1 Bishop; Criminal Law (9 Ed.), secs. 716-722; Horrigan & Thompson: Law of Self-Defense, p. 30 (note), p. 750. (19) Limiting instruction of justifiable homicide to self-defense when there was evidence of defense of property or for any of these other legitimate purposes was reversible error. State v. Shiles, 188 S.W. (2d) 7; Morgan v. Durfee, 69 Mo. 469; State v. Rennison, 306 Mo. 483, 260 S.W. 850. (20) In some respects, the right to defend property or a dwelling is "Superior" to that of self-defense, because there never can be any obligation to retreat, but one may stand his ground and use all force necessary to repel the assailant from the house, even to the extent of taking his life. Morgan v. Durfee, 69 Mo. l.c. 480. (21) Even though no more than an ordinary battery is intended, a third person may interpose in defense of person assailed. Horrigan & Thompson: Law of Self-Defense; Defense Against Common Assaults, 720-725, 751 (Par. 3); Curtis v. Hubbard, 1 Hill 336, 4 Hill 437; Morgan v. Durfee, 69 Mo. l.c. 475. (22) Failure of court to instruct jury on manslaughter in "heat of passion" upon "lawful provocation" was reversible error; there was evidence of provocation legally sufficient to arouse heat of passion and that it was in fact aroused. State v. Robinson, 185 S.W. (2d) 636; State v. Ellis, 70 Mo. 207; State v. Vansant, 80 Mo. 67; State v. Heath, 221 Mo. 565, 121 S.W. 149; State v. Connor, 252 S.W. 713; State v. McKinzie, 102 Mo. 620, 15 S.W. 149. (23) The fist attack by deceased upon appellant was lawful provocation to create heat of passion and the jury should have been so instructed. State v. Robinson, supra; State v. Vansant, supra; State v. Umfried, 76 Mo. 404; State v. Rose, 74 Mo. 213; State v. Creighton, 330 Mo. 1176, 52 S.W. (2d) 560; State v. Gieseke, 209 Mo. l.c. 542, 108 S.W. 525; State v. Sterling, 72 S.W. (2d) 70; State v. Reed, 154 Mo. l.c. 131, 55 S.W. 278. (24) Even if appellant struck first blow or thereafter used excessive force upon deceased any homicide was reduced to manslaughter if he was acting in defense of any of the interests or under any of the circumstances set out in Point 2. State v. Rennison, 307 Mo. 473, 267 S.W. 850; State v. Turner, 246 Mo. 598, 152 S.W. 313; State v. Umfried, 76 Mo. 404; State v. Rose, 74 Mo. 213; State v. Havens, 177 S.W. (2d) 625; State v. Burnett, 188 S.W. (2d) 51. (25) The heat of passion that produces lawful provocation ought to be defined. State v. Skaggs, 159 Mo. 581, 60 S.W. 1048; State v. McKinzie, 102 Mo. l.c. 627; State v. Umfried, 76 Mo. l.c. 407; State v. Gieseke, 209 Mo. 331, 108 S.W. 525; State v. Gore, 292 Mo. 173, 237 S.W. 993, to the contrary, was questioned in State v. Gadwood, 116 S.W. (2d) 42, 58-59, and may be considered overruled by State v. Robinson, 185 S.W. (2d) 636. (26) Passion negatives malice, and the killing, although intentional, will be only manslaughter. State v. Rennison, 306 Mo. l.c. 483, 267 S.W. 850; State v. Turner, 246 Mo. l.c. 611, 152 S.W. l.c. 316. (27) Failure to instruct on circumstantial evidence was error. State v. Bennett, 297 Mo. 190, 248 S.W. 924; State v. Hancock, 340 Mo. 918, 104 S.W. (2d) 241. (28) Instruction 1 made no reference to "excusable homicide," "justifiable homicide" or "manslaughter," but directed the jury to find appellant guilty of second-degree murder, if they found the bare hypotheses set out in the instruction, irrespective of facts which would have rendered the homicide excusable or justifiable, or have reduced it to manslaughter; the statutory definition of second degree murder is such that it is impossible to correctly define it without reference to justifiable and excusable homicide and manslaughter, if there be any evidence under any of those heads in the case. Sec. 4377, R.S. 1939; State v. Cushing, 29 Mo. 215; State v. Phillips, 24 Mo. 475. (29) Instruction 2 was erroneous in that it gave jury a confusing statement as to whether a homicide could be manslaughter if done "intentionally." State v. Gadwood, 116 S.W. (2d) 42. (30) Instruction 3...

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41 practice notes
  • State v. Smith, No. 46171
    • United States
    • United States State Supreme Court of Missouri
    • March 10, 1958
    ...Mo. 269, 242 S.W. 952, 954 , 24 A.L.R. 682. See also State v. Frazier, 339 Mo. 966, 98 S.W.2d 707, 712; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 54[4-8]; State v. Rizor, 353 Mo. 368, 182 S.W.2d 525, 528[7, 8]. The corpus delicti--the death of Bunch and the criminal agency of someone ......
  • State v. Tyler, No. 54830
    • United States
    • United States State Supreme Court of Missouri
    • May 11, 1970
    ...Wiley, Mo., 412 S.W.2d 485; State v. Bryant, Mo., 375 S.W.2d 107; State v. Franck, Mo., 260 S.W.2d 52; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, to the effect the indictment is deficient if it failed to allege that after conviction the defendant was subsequently placed on probation, p......
  • State v. Hacker, No. 40971.
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    • United States State Supreme Court of Missouri
    • November 8, 1948
    ...892, 893, 69 Am.St.Rep. 598; State v. Rizor, 353 Mo. 368, 374[4], 182 S.W.2d 525, 529 [7, 8]; State v. Brinkley, 354 Mo. 1051, 1066[1], 193 S.W.2d 49, In 1942 appellant pleaded guilty to a charge of burglary and larceny. The court, exercising the discretion vested by § 9117 when an accused ......
  • State v. Lawson, No. 41661
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    • United States State Supreme Court of Missouri
    • February 13, 1950
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20 cases
  • State v. Fields, No. 7439
    • United States
    • New Mexico Supreme Court of New Mexico
    • October 19, 1964
    ...manslaughter. See also, State v. Sisneros, supra; State v. Leopold, 110 Conn. 55, 147 A. 118; State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49; State v. Ward, 258 N.C. 330, 128 S.E.2d 673; State v. Rounds, 104 Vt. 442, 160 A. 249. The rule is stated in 40 C.J.S. Homicide Sec. 11b, p. 854, as ......
  • State v. Postell, No. 1
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    • Court of Appeals of Arizona
    • June 12, 1973
    ...have ruled that a defendant was entitled to an instruction on his defense, even without his request. State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49 (1946); State v. Doublas, 16 N.C.App. 597, 192 S.E.2d 643 (1973); Coleman v. State, 208 Ga. 511, 67 S.E.2d 578 (1951). Other courts, however, h......
  • State v. Marohl, No. 83570–5.
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    • December 30, 2010
    ...a concrete sidewalk where the defendant repeatedly struck the victim's head against the sidewalk); State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 55 (1946) (stating a victim's fall against a stationary object such as a wall would be irrelevant where the contact was a “mere incident of the ......
  • State v. Bradley, No. 50578
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    • United States State Supreme Court of Iowa
    • July 24, 1962
    ...The use of a shoe in kicking a victim may under some circumstances make it a dangerous weapon. State v. Brinkley, 354 Mo. 1051, 193 S.W.2d 49, 53; Medlin v. United States, 93 U.S.App.D.C. 64, 207 F.2d 33; Smith v. State, 79 Okl.Cr. 151, 152 P.2d 279, 281. We think the attack made by the def......
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