State v. Clough

• Decision Date: 14 April 1931
• Docket Number: No. 30915.,30915.
• Citation: State v. Clough, 38 S.W.2d 36, 327 Mo. 700 (Mo. 1931)
• Parties: THE STATE v. MILO M. CLOUGH, Appellant.
• Court: Missouri Supreme Court

38 S.W.2d 36

THE STATE v.MILO M. CLOUGH, Appellant.

No. 30915.

Supreme Court of Missouri. Division Two.

April 14, 1931.

Appeal from Laclede Circuit Court.— Hon. J.H. Bowron, Judge.

REVERSED AND REMANDED.

Barton & Moberly, for appellant.

(1) Where there is substantial evidence that the fatal shot was fired by appellant while in a state of mind incapable of cool reflection, due to passion, excitement, terror or fright generated by threats, and an assault made by deceased, the court should give an instruction on manslaughter.Sec. 4025, R.S. 1919;State v. Johnson, 6 S.W. (2d) 898;State v. Burrell, 298 Mo. 672;State v. Conway, 241 Mo. 271;State v. Harp, 306 Mo. 428;State v. Rennison, 306 Mo. 473;State v. Wilson, 242 Mo. 481;State v. Hanson, 231 Mo. 14;State v. Mull, 300 S.W. 513;State v. Conley, 255 Mo. 185;State v. Darling, 199 Mo. 168;State v. Richardson, 194 Mo. 326;State v. Heath, 221 Mo. 565;State v. Gordon, 191 Mo. 114.(2) An instruction which minimizes defendant's right to self-defense by argument, contradiction, by giving an undue prominence to a particular portion of the evidence, or by omitting a portion of defendant's evidence, is erroneous, 30 C.J. 368;State v. Eaton, 75 Mo. 586;State v. Jordan, 306 Mo. 3;State v. Hollingsworth, 156 Mo. 178;State v. Darling, 202 Mo. 150;State v. Hopkins, 278 Mo. 388;State v. Roberts, 280 Mo. 669;State v. McGehee, 308 Mo. 560;State v. Starr, 38 Mo. 270.(3) Evidence of the statements of accused at the coroner's inquest was inadmissible because involuntarily made.State v. Blackburn, 273 Mo. 469;State v. Young, 119 Mo. 495;30 C.J. 282;State v. Caperton, 276 Mo. 314;State v. Thornton, 245 Mo. 436;State v. Naughton, 221 Mo. 398;State v. Lehman, 175 Mo. 619;State v. Thomas, 250 Mo. 189;State v. Newcomb, 220 Mo. 54;Ex parte Tony Ganss, 223 Mo. 277.

Stratton Shartel,Attorney-General, and A.B. Lovan, Assistant Attorney-General, for respondent.

(1) The record shows that the defendant testified in detail as to the killing of the deceased.When he testified that the deceased threw rocks at him the State had the right to cross-examine him as to that fact and to ask him if he in his statement to others told about the rocks."Cross-examination is not confined to a mere categorical review."State v. Miller, 156 Mo. 85.(2) No error is committed in refusing an instruction if the subject-matter is covered by other instructions given.State v. Hutchens, 271 S.W. 530.(3)InstructionNo. 4 is warranted by the evidence.It is in a proper form.State v. Ballance, 207 Mo. 617.(4) It is the contention of the State that the testimony of defendant in this case does not warrant an instruction on manslaughter.State v. Ballance, 207 Mo. 617.

WESTHUES.C.

The grand jury of Laclede County, Missouri, by an indictment, charged the defendant in this case with murder in the first degree, having shot and killed one John Brady on the 24th day of January, 1929.Defendant was tried on this charge in Laclede County, October 14, 1929.The jury found the defendant guilty of murder in the second degree, and assessed his punishment at ten years in the penitentiary.Motion for new trial was filed, overruled, and defendant sentenced.From this sentence he has appealed.

The defendant, a justice of the peace, lived about one-half mile north of Conway, Laclede County.The deceased lived in Conway.A railroad track and a public road paralleled each other north from Conway and passed near the home of defendant.Defendant usually walked to Conway by way of the railroad track.In the early part of January there was an exchange of real estate between one Mitchell and Goodson, the details of which are immaterial, except that defendant claimed to have earned a commission as agent in making the deal.Deceased claimed part of this commission was due him.A sharp dispute arose between defendant and deceased over this transaction.While this dispute was still fomenting, oil was added to the fire by the filing of a suit before the defendant, as justice of the peace, against deceased by the Bank of Conway for rent and possession of the house then occupied by deceased.The notice or summons in that suit required the deceased to appear on January 24th.According to the evidence, prior to the time the suit was filed, deceased went to the home of the defendant and demanded $100 as his share in the real estate deal.Defendant denied owing deceased anything, which resulted in a heated argument and threats by both defendant and deceased.Thereafter, and prior to the killing, deceased made a number of serious threats against the life of the defendant which were communicated to the defendant.Defendant testified that on one occasion deceased came to defendant's home and demanded of the defendant that he dismiss the suit filed by the bank.Upon refusal to comply with the demand, deceased cursed and threatened to kill the defendant and stated that he would watch the defendant's home for six months, if necessary, to get defendant; that the next day the deceased followed defendant along the railroad track, threatened and cursed him, and defendant was obliged to run home to escape an assault by deceased.

The suit filed by the bank was dismissed and the costs paid by the bank, because the deceased moved from the premises to another place.The only evidence tending to show that deceased knew of this dismissal was that defendant testified he informed the deceased to that effect, and when he did so, the deceased replied as follows: "That does not settle the matter, I will get you and that damned banker yet."

On the fatal day, the morning of the homicide, defendant was walking on the railroad track toward Conway, according to the defendant, to attend a funeral.Several witnesses testified that deceased was in a garage on that morning and made the statement that he was going to see the defendant about some law suit, and if he did not return in a certain time to come and pick up the pieces.Within twenty minutes thereafter the same witnesses heard that deceased had been killed.

Defendant's version of the killing is that he was afraid of the deceased as a result of the threats made by the deceased, both in person and those communicated to him by third parties.He therefore armed himself by placing a revolver in his pocket on the morning of the shooting, for the sole purpose of protecting himself against the threatened assaults of the deceased; that while he was walking on the railroad track toward Conway, he noticed the deceased in the roadway paralleling the railroad track; that deceased crossed over toward the defendant and the railroad track in a rather fast walk or trot, and when the deceased came within a short distance of the defendanthe made the statement, "I will get you now, you s____ of a b____; you won't get away from me this time;" and that deceased threw two rocks at him.Defendant further testified that he, defendant, told deceased three or four times, "You let me alone," and backed away from the deceased; that the deceased advanced to within six feet of defendant, and then defendant shot to protect his own life.

Other witnesses saw the defendant on the railroad track walking toward Conway, and also saw deceased walking toward the railroad track where defendant was walking.From the view we take of the case it will not be necessary to detail this testimony, as it has no direct bearing on the questions presented.Additional statements of the testimony will be made, if deemed necessary, in the opinion.

Defendant contends that the court erred in not submitting an instruction to the jury on manslaughter.Voluntary manslaughter has been defined as "the intentional killing of a human being in a heat of passion on a reasonable provocation, without malice and without premeditation, and under circumstances which will not render the killing justifiable or excusable homicide."[State v. Sebastian, 215 Mo. l.c. 80, 114 S.W. l.c. 528;State v. Lewis, 248 Mo. 498, 154 S.W. 716.]It has also been said, that to constitute voluntary manslaughter the killing must be "done either in sudden affray or in sudden heat of passion and upon provocation ordinarily calculated to excite the passion beyond control."[Cavanaugh v. Commonwealth, 172 Ky. 799, 190 S.W. 123;State v. Johnson, 6 S.W. (2d) 898;State v. Ballance, 207 Mo. l.c. 617, 106 S.W. 60;State v. Gartrell, 171 Mo. 489, l.c. 516 to 519, 71 S.W. 1045.]The following statement in Wharton on Homicide(3 Ed.), sec. 172, has often been approved by this court: "A provocation is deemed to be adequate, so as to reduce the offense from murder to manslaughter, whenever it is calculated to excite the passions beyond control.It must be of such a character as would, in the mind of an average just and reasonable man, stir resentment likely to cause violence endangering life, or as would naturally tend to disturb and obscure the reason and lead to action from passion rather than judgment, or to create anger, rage, sudden resentment, or terror rendering the mind incapable of reflection."[State v. Conley, 164 S.W. l.c. 197;State v. Burrell, 298 Mo. l.c. 680, 252 S.W. 709;State v. Borders, 199 S.W. 180.]

The authorities are fairly harmonious in holding that in order for a homicide to be reduced from murder to manslaughter, there must be a sudden, unexpected assault, encounter, or provocation tending to excite the passion beyond control.It is not the assault or the provocation alone that reduces the grade of the crime, but it is the sudden happening or occurrence of the provocation as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent, and therefore the crime is not murder but manslaughter.[State v. Stewart, 278 Mo. l.c. 185, et. seq., also l.c. 188, and numerous cases cited and reviewed at pages 186 and 187, holding a manslaughter instruction...