State v. Caldwell

• Decision Date: 26 May 1921
• Docket Number: No. 22621.,22621.
• Citation: 231 S.W. 613
• Parties: STATE v. CALDWELL.
• Court: Missouri Supreme Court

231 S.W. 613

STATE v. CALDWELL.

No. 22621.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Appeal from Circuit Court, Andrew County; Alonzo D. Burns, Judge.

C. F. Caldwell was convicted of an assault with intent to kill, and he appeals. Affirmed.

P. C. Breit and L. W. Booker, both of Savannah, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Sp. Asst. Atty. Gen., for the State.

WALKER, J.

Appellant was charged by information in the circuit court of Andrew county with an assault with intent to kill. Upon a trial he was convicted and his punishment assessed at one year's imprisonment in a county jail and a fine of $500. From this judgment he appeals.

David Waldon was the janitor of the First National Bank Building in Savannah. The appellant, a dentist, had his office on the second floor of that building. The parties on January 1st and 2d had some disagreeable words, and during the second quarrel, appellant said he would "blow a hole through Waldon." The next morning they met on a street corner in Savannah, and when within 8 or 10 feet of each other the appellant said, "Now, damn you," drew a pistol, and shot Waldon twice. Before the shooting Waldon either assaulted the appellant with his fists, or was attempting to disarm the latter, but failed in so doing. The wounds received by Waldon were dangerous, but did not prove fatal, and after the extraction of the bullets and a week's stay in a hospital he recovered. Testimony of witnesses who saw the parties when the last shot was fired is to the effect that Waldon had his hands up, and was making no effort to assault the appellant. One of the witnesses heard the appellant, a few minutes after the shooting say: "I told the black s_____ of a b_____ I would kill him." Appellant, testifying in his own behalf, said that, while en route from his home to his office on the morning of the assault, he met Waldon at a street " corner; that the latter rushed upon him and struck him repeatedly with his fists upon the head and face; that the appellant said to Waldon, "stay back" or "stand back"; that after the first blows appellant succeeded in getting off his overcoat and wraps, it being a very cold morning, and drew his revolver, and fired in order to stop the attack on him. After the first shot Waldon continued to strike him and when be fired the second shot Waldon stepped back, and appellant proceeded on his way to his office.

There was testimony to the effect, that on the day, or following the day of the assault, there were bruises on appellant's cheek and forehead. The officer who arrested appellant, however, a few minutes after the shooting, and other witnesses, contradicted this testimony. The appellant was about 47 years of age, and weighed 145 or 150 pounds, was reasonably active, and in good health. Waldon, to employ the language of the state's witnesses, was "an old decrepit negro, about 63 years of age."

1. Appellant assigns error in the giving, by the trial court, of the following instruction:

"The jury is instructed that a person who brings on a difficulty for the purpose of killing his adversary or wreaking his vengeance on him cannot avail himself with the right of self-defense in order to shield himself from the consequences of wounding or injuring his adversary, however imminent the danger in which he may have found himself during the progress of the affray, and if in this case the jury believe that from the evidence that the defendant prepared himself with a pistol previous to the difficulty with the witness David Waldon, on the 3d day of January, 1910, and sought, brought on, or entered voluntarily into the encounter with Waldon, in order to wreak his malice on him, then there is no self-defense in the case."

This instruction correctly declares the law in regard to the limitation of the doctrine of self-defense. Other instructions were given, both at the request of the state and the appellant, which clearly presented the applicable law under the evidence, and hence the instruction complained of cannot be interpreted to appellant's prejudice. For example, instruction numbered 5, given at the request of the state, was as follows:

"The defendant admits the shooting and wounding, but claims that he acted in self-defense. Upon this question the court instructs you that if you find from the evidence that when defendant shot and wounded said Walden he had reasonable cause to believe, and did believe, that said Waldon was about to take his life or do him some great personal injury; and, further, that he had reasonable cause to believe, and did believe, that it was necessary for him to shoot and wound said Waldon in order to protect himself from such danger, then he ought to be acquitted en the ground of self-defense.

Whether defendant had reasonable grounds to believe that such danger existed, and whether he shot and wounded said Waldon in the honest belief that it was necessary for the protection of his life or person, are questions which you must determine from all the evidence in the case. If you believe from the evidence that the defendant shot and wounded the said Waldon unnecessarily, and when he did not have reasonable cause to believe that the said Waldon was then about to kill him or do him great bodily harm or personal injury, then and there is no self-defense in the case, and you cannot acquit the defendant on that ground."

And also instruction numbered 4, given at the request of the appellant, which is as follows:

"The court instructs the jury that if you find and believe from the evidence that Dr. C. F. Caldwell was at the time of the difficulty on his way from his home to his place of business, on a public thoroughfare, and that David Waldon first assaulted defendant, then defendant was under no obligation to retreat, but had a right to stand his ground and to use force in resisting such assaults as was necessary to protect himself from great personal injury or bodily harm. And if defendant at the time he shot David Waldon had reasonable cause to apprehend, and did apprehend, that David Waldon was about to do defendant some great personal injury or bodily harm, and that the danger was imminent and about to fall, and that defendant shot to avert such apprehended danger, then such shooting was justifiable and you should acquit the defendant on the ground of self-defense; and in this connection you are instructed that it is not necessary in order to acquit on the...