State v. Carter
| Decision Date | 12 September 1939 |
| Docket Number | 36370 |
| Parties | The State v. Jesse Lee Carter, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge;
Affirmed.
Earl C. Borchers and Jay B. Wilson for appellant.
(1) These instructions improperly restrict the right of self-defense. (a) Under the terms of Instruction 16 appellant in the eyes of the jury lost his right of self-defense merely because he got off the bench upon which he was sitting when deceased approached; and particularly so when appellant went toward deceased as deceased started upon the sidewalk toward appellant. (b) Under the facts of this case the denial of the right of attack as a means to defend is especially harmful for the reason that defendant was entitled to his effort to induce deceased to go home without trouble, and when deceased grabbed appellant's clothing and thus attacked appellant appellant was entitled to reasonable force to release himself from deceased, and in so doing appellant was acting in self-defense. State v. Williams, 87 S.W.2d 175; State v. Creighton, 52 S.W.2d 556, 330 Mo. 1176; State v. Malone, 39 S.W.2d 794, 327 Mo. 1217; State v. Rennison, 276 S.W. 850, 306 Mo. 473; State v. Creed, 252 S.W. 678, 299 Mo. 307; State v. Ball, 262 S.W. 1043; State v. Yates, 256 S.W. 809, 301 Mo. 255; State v. Atkins, 225 S.W 982, 284 Mo. 680; State v. Miller, 270 S.W. 294; State v. Jordan, 268 S.W. 70; State v Clough, 38 S.W.2d 36; State v. Swarens, 241 S.W. 936, 294 Mo. 139.
Roy McKittrick, Attorney General, and J. F. Allebach, Assistant Attorney General, for respondent.
(1) Instructions 16 and 21 properly state the law of self-defense. State v. O'Leary, 44 S.W.2d 53; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Gibbs, 186 S.W. 986; State v. McQuitty, 237 Mo. 232, 140 S.W. 869; State v. Sebastian, 114 S.W. 522, 215 Mo. 58. (2) The court did not err in submitting the charge of second degree murder. State v. John, 72 S.W. 525, 172 Mo. 227; State v. Hyland, 144 Mo. 310; State v. Gartrell, 71 S.W. 1045, 171 Mo. 516; State v. Elliott, 98 Mo. 150; State v. Ballance, 207 Mo. 607, 106 S.W. 60; State v. McMullin, 170 Mo. 608, 71 S.W. 221; State v. Murphy, 237 S.W. 529; State v. O'Hara, 92 Mo. 64. (3) The court did not err in submitting to the jury the question of the alleged flight of the appellant. State v. Turner, 274 S.W. 35; State v. Gibbs, 186 S.W. 986; State v. Duncan, 336 Mo. 600, 80 S.W.2d 147; Sec. 3503, R. S. 1929. (4) Remarks of assistant prosecuting attorney in final argument were not improper. State v. Dipley, 147 S.W. 111, 242 Mo. 461.
Westhues, C. Cooley and Bohling, CC., concur.
Appellant, Jesse Lee Carter, was convicted of murder in the second degree, in the Circuit Court of Buchanan County, and sentenced to imprisonment in the penitentiary for a term of fifteen years. He appealed. The question of the sufficiency of the evidence to sustain the charge was preserved for review. The following facts are supported by substantial evidence: Ill feeling existed between the appellant and the deceased, Robert Lee Pierce. On the tenth day of August, 1937, at about 4:00 P. M., Pierce parked his car in front of appellant's place of business. There was evidence that Pierce was under the influence of liquor. While still in his car he cursed and vilified appellant. A Mr. Sprake at this time started to go into appellant's place of business, and Pierce said to him:
"Don't go in there and drink none of that lousy beer; go down below and get some good beer."
This seemed to have angered appellant and he walked to the street where Pierce was then standing and struck him on the jaw, causing him to fall against the fender of the car. When Pierce straightened, appellant struck him a second time and he fell to his hands and knees. When he arose appellant hit him a third time, knocking him over backwards. His head struck the street, rendering him unconscious, and he died within a few hours as the result of a hemorrhage within the brain. The State's evidence justified a finding that Pierce, the deceased, cursed appellant but made no attempt to assault him. One witness testified that Pierce was too intoxicated to engage in a fight. There was also evidence that Pierce's right arm was somewhat incapacitated, due to an injury he had sustained years before. There was substantial evidence that appellant's assault upon deceased was deliberate and with intent to inflict severe injury. Note the following evidence by a witness on cross-examination:
"I saw Red hit him and I saw him go over on the fender and when he got up he hit him the second time, and he went over on the sidewalk and when he hit him the third time he took one step to Mr. Pierce and drove it up under the jaw and Red Carter knows that is the way it was."
Other witnesses gave similar testimony. Appellant pleaded self-defense. He testified that he attempted to get deceased to go home; that the deceased grabbed him and he pushed deceased away; that he, deceased, fell backwards to the street. Appellant insists that since no deadly weapon was used the evidence fell short of sustaining a conviction of murder in the second degree. We reviewed this question recently in the case of State v. Clark, 111 S.W.2d 101, l. c. 202 (2). In that case a conviction of murder in the second degree was sustained. The assault upon the deceased was made with the fist, as in the case now before us. For earlier cases on the same point see cases cited in the above opinion. From the authorities there cited it will be noted the rule is well settled, that a conviction for murder may be sustained even though the assault is made without a deadly weapon.
In rebuttal the State introduced evidence, over appellant's objection, of a difficulty appellant had with one Spratt. Appellant briefed this point at length and it may be conceded that the evidence was incompetent unless appellant's action during the trial rendered it admissible. An examination of the record discloses that the trial court did not err. Briefly stated the record shows the following: Witnesses, while testifying in chief for the State, stated that deceased, while talking to appellant, said:
"You beat up old man Spratt, because he was old and drunk and I don't think you got any feathers in your cap, or any credit for that."
While defendant was on the stand the prosecuting attorney asked him a question with reference to the Spratt difficulty. An objection, by defendant, was promptly sustained and the jury instructed to disregard the question. On redirect examination the following occurred:
In rebuttal the State was then permitted to introduce evidence with reference to the Spratt episode which contradicted the evidence given by the defendant. It is evident that the evidence in rebuttal was admissible, but only so because appellant saw fit to testify in detail as to the Spratt difficulty.
Appellant contended that Ralph L. McDonald, a juror, was related to the defendant, and therefore not a competent juror to try the case. This information came to appellant's counsel after the case had been submitted to the jury. Counsel objected to a verdict being received. The facts, as later developed, were, that the juror's wife's cousin married a brother of the defendant. The juror did not know this fact when he was questioned. But, be that as it may, under the facts disclosed the juror was not related to the defendant. [2 C. J. 378.]
The prosecuting attorney in closing his argument to the jury stated in substance that after the final argument in the case the matter would be entirely in the hands of the jury; that the people of the county would be awaiting their verdict and wondering if they would be given protection. This was objected to by defendant's counsel, which objection was overruled. The ruling was assailed as error. It has been generally ruled that such an argument is not improper. In 16 Corpus Juris, 910, section 2260, it is stated that the prosecuting attorney, ". . . may make remarks illustrating the evil consequences that might result from their failure to perform their duty, and may in effect tell them that the people look to them for protection against crime."
[See, also, State v. Swain, 239 Mo. 723, 144 S.W. 427, l. c. 428 (7) 6; State v. Dipley, 242 Mo. 461, 147 S.W. 111, l. c. 117 (22).]
The remaining assignments of error briefed pertain to the instructions given by the...
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