State v. Bushong

• Decision Date: 09 December 1922
• Docket Number: No. 23683.,23683.
• Citation: 246 S.W. 919
• Parties: STATE v. BUSHONG.
• Court: Missouri Supreme Court

246 S.W. 919

STATE v. BUSHONG.

No. 23683.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Circuit Court, Douglas County; Fred Stewart, Judge.

Orville Bushong was convicted of murder, and appeals. Affirmed.

Moore, Barrett & Moore, of Ozark, and George B. Wilson, of Ava, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was charged by information in the circuit court of Douglas county with murder in the first degree. Upon a trial, he was convicted and his punishment assessed at 10 years' imprisonment in the penitentiary. From this judgment he appeals.

In October, 1921, there was a country dance at the home of Ray Livingston in Douglas county. The defendant, the deceased, named Bye Bell, and a number of others were present. The dance continued until near midnight, when a part of the crowd started to their homes. The appellant and others were at this time outside of the house. The deceased, with his brothers and one Robert Hancock, passed near where the appellant and his associates were standing. As they passed, the defendant threatened to shoot Hancock's mare and used much profane and obscene language. Hancock remonstrated with him, saying that there were women present and that appellant might get arrested for his conduct. Appellant continued to verbally abuse Hancock, when the deceased came up and said there was no use of any trouble and started towards the door of Livingston's house. Just as a brother of the deceased remarked that "Orville won't hurt anybody," the appellant struck the deceased with a knife. The latter staggered backwards, saying, as if in response to his brother's remark: "Yes, he will; he has done hurt me, and hurt me bad." The deceased fell, arose and fell again, and was carried into the house, where he expired within 10 minutes after being stabbed. His death was the result of two knife wounds—one in the left side and the other in the breast. The defendant, on the day he was arrested, admitted that he had done the cutting. The probative force of the testimony for the defense does not when analyzed, differ materially from that adduced for the state. The tendency of the appellant's testimony is to prove self-defense. The jury did not give it credence.

I. The admission of the response of the deceased to his brother's remark Immediately after the stabbing is assigned as error. This response, made in the presence of the appellant, is so indissolubly connected with the act itself as to form part of the res gestæ. State v. Dougherty, 287 Mo. 82, 228 S. W. 786. "

There was no error in the rejection of evidence as to the drunken condition of the deceased and witnesses for the state.

Voluntary drunkenness cannot be interposed as a defense to a crime committed as the immediate result of such drunkenness, and although there may be no criminal intent, the law will, by construction, supply same. This, under the well-recognized principle that one who voluntarily assumes an attitude likely to produce harm to others is responsible for the consequences of his act. State v. Jordan, 285 Mo. 62, 225 S. W. 905; State v. Lloyd (Mo. Sup.) 217 S. W. 26.

II. Instruction numbered 6, given by the court, is assigned as error. This instruction is as follows:

"The court instructs the jury that if they find from the evidence in this cause that at the time the defendant stabbed the said Bye Bell, if he did stab him, the defendant had reasonable cause to apprehend a design on the part of deceased or others acting in concert with him, if such is the fact, to kill the defendant or to do him some great bodily harm, and that there was reasonable cause to apprehend immediate danger of such design, if any, being carried out, and that he stabbed and killed deceased to prevent the accomplishment of such apprehended design, if any, then such killing was justifiable, unless the jury find from the evidence that the defendant provoked the fatal combat for the purpose of killing the said Bye Bell or doing some great bodily harm and for...