State v. Brown
| Decision Date | 31 October 1876 |
| Citation | 63 Mo. 439 |
| Parties | STATE OF MISSOURI, Respondent, v. FRANK BROWN, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court.
A. H. Vories, for Appellant, cited: State vs. Sloan, 47 Mo. 604-13; State vs. Linney, 52 Mo. 41; State vs. Scott, 17 Mo. 521; State vs. Keene, 50 Mo. 358; State vs. Buckner, 25 Mo. 167; State vs. Cross, 27 Mo. 332: State vs. Mathews, 20 Mo. 55; State vs. Jones, 61 Mo. 235; State vs. Underwood, 57 Mo. 40-51; Kelley's Crim. Law & Prac., § 132, and authorities there cited; 17 Q. B. 503; 6 Eng. Law & Eq., 352, 504.
J. A. Hockaday, for Respondent, cited: State vs. Harris, 59 Mo. 554; State vs. Starr, 38 Mo. 270; State vs. Levering, 52 Mo. 40, and argued that in State vs. Underwood, the court passing on the case, regarded the trial as over when the motion was heard.
The defendant was indicted at the March Term, 1875, of the Buchanan circuit court, for the murder of James B. Spratt. Defendant was put upon his trial at the July Term, 1875, of said court, and was convicted of murder in the first degree. A reversal of the judgment is sought,
1st, because the court admitted irrelevant and incompetent evidence;
2d, because the court erred in giving instructions for the State, and refusing instructions for defendant;
3d, because the record does not show that defendant was present in person when the motion for new trial was overruled.
These objections will be considered in the order in which they are made, and to present the first objection fully, it will be necessary to advert briefly to the facts of the case as disclosed in the bill of exceptions.
It appears from the evidence that on the 25th day of December, 1874, Spratt, the deceased, was in the town of De Kalb, Buchanan county, for the purpose of attending a trial before a justice of the peace, in a cause in which he was a party; that the trial was to take place in a house occupied by one Hisle as a shoe shop; that about thirty minutes before the case was called for trial, and after the arrival of Spratt in the town, the defendant, who had previously arrived, went into the room where the trial was to be had, placing himself at a window, when a pistol in his possession was accidentally discharged. Spratt, the deceased, on being called into court by the constable, proceeded, in company with his son John, to Hisle's shop, and as he stepped into the door, defendant shot the deceased with a pistol, the ball entering his mouth, passing through the palate and lodging in the neck bone. Spratt died from the effects of this shot on the 5th of February, 1875. It appears from the evidence that some three or four weeks previous to the shooting, defendant had charged the deceased with selling him sick beef, and that deceased threatened to kill the defendant, or have it done, and that about half an hour before the shooting, deceased said he would kill the defendant that day. These threats were communicated to the defendant.
At the time the fatal shot was fired by defendant, the witnesses on the part of the State swore that nothing was said either by the deceased or defendant, and that they observed no hostile demonstration on the part of deceased; several of them stating that the hands of deceased when he entered the door were down by his side, and two of the defendant's witnesses stating that his right hand was thrown around under the left skirt of his coat.
It was shown that the son of deceased, immediately after his father was shot, fired upon defendant, wounding him in the arm and breast. It was also shown that defendant upon being asked why he had not killed Spratt, replied that he supposed Spratt must have seen him and thrown up his head, and it was also stated by another witness that deceased said he had been shot by Wallingford. The evidence for the prosecution further showed that defendant, about two weeks previous to the difficulty, had threatened to shoot deceased, and on the day that it occurred, said he would put a bullet through his head. It was also shown that Spratt, when he was shot, had a pistol in a belt, buckled around him, and it was said by several witnesses that he had the character of being a turbulent, violent man. After the defendant had closed his evidence, the State offered several witnesses in rebuttal, one of whom, Dr. Rose, stated
The above statement is the only evidence excepted to by defendant, and it is insisted that the court erred in admitting it, because it was incompetent and irrelevant and not rebutting, but original evidence.
This point must be ruled against the defendant. Threats of the defendant that he would shoot Spratt and put a bullet through his head having been proven, it was entirely competent for the State to show that he came to town on the day of the difficulty prepared to execute his threat. Although the evidence which was admitted was not strictly by way of rebuttal, but more in the nature of original or additional evidence, yet it was within the discretion of the court to receive it, and in receiving it, we think that the discretion was neither unsoundly nor improperly exercised, especially when it is considered that defendant was allowed to introduce a witness to rebut the facts stated by the witness Rose.
The fourth and fifth instructions given on behalf of the State against defendant's objection, told the jury in substance, that if defendant wilfully, deliberately, premeditatedly, and with malice (these terms having been properly defined by the court in another instruction,) shot the deceased with a pistol, and had previously prepared said weapon and sought that particular time and place to do the deed, evidence of threats on the part of deceased, and of the character of deceased is immaterial and will be disregarded.
The fifth instruction declared that the right of self-defense, which justifies homicide, does not imply the right of attack, and the plea of justification in self-defense cannot avail in any case, when it appears that the difficulty was sought for at the time and place by the party, in order to afford him an opportunity or pretense for wreaking his malice, and that, if defendant sought the difficulty at Hisle's shop and shot deceased for the purpose of wreaking his malice, then there is no self-defense in the case and the jury should convict.
These instructions, when considered in connection with the third and fourth given for defendant, placed the law of the case in the most favorable light for the defendant, and in view of the facts disclosed on the trial were...
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