State v. Darling

• Decision Date: 05 March 1907
• Citation: 100 S.W. 631,202 Mo. 150
• Parties: STATE v. DARLING.
• Court: Missouri Supreme Court

100 S.W. 631

202 Mo. 150

STATE v. DARLING.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. HOMICIDE—SELF-DEFENSE—INSTRUCTIONS.

In a prosecution for homicide, an instruction that if defendant's co-indictee struck deceased with some weapon, causing his death, and at the time had good reason to believe, and did believe, from the conduct or appearance of deceased, that deceased was about to inflict upon him some great bodily harm, and struck him for the purpose of averting such apprehended danger, then such co-indictee killed deceased in

self-defense, etc., and that in such case it is not necessary that the danger should have been real and about to fall, as all that is necessary is that such danger existed, and that, on the other hand, it was not enough that such co-indictee believed in the existence of such danger, but he must have had good cause for so believing, was faulty, in saying that all that was necessary was that such danger existed; the law being that, whether the danger really existed or not, if he had good reason to believe, and did believe, it to exist, he had the right to act on appearances, although it might thereafter have turned out that the appearances were false.

2. SAME—QUESTIONS FOR JURY.

In a prosecution for homicide, the question whether defendant's co-indictee, who claimed to have acted in self-defense, had good reason for acting as he did, was for the jury.

3. WITNESSES—PREJUDICE—EVIDENCE.

In a prosecution for homicide, it was competent for defendant, for the purpose of impeaching a witness, who denied, on cross-examination, having made certain statements indicating prejudice towards defendant, to show by other witnesses that he had in fact made such statements.

4. HOMICIDE—INSTRUCTIONS.

In a prosecution for homicide, an instruction that if defendant's co-indictee sought deceased for the purpose of assaulting him, but without any felonious intent to use on him a deadly weapon, or to inflict great bodily harm, and defendant, with knowledge of such intention, came with his co-indictee to the scene of the tragedy, for the purpose, and with the intention, of aiding him, if necessary, in making such assault, and was present at the time thereof for such purpose, and that during such difficulty, it became necessary for defendant's co-indictee to kill, and he did kill, deceased in order to save his own life, defendant was guilty of manslaughter in the fourth degree, did not in any way trench on the right of self-defense of defendant's co-indictee, the words "during such difficulty," referring to the difficulty resulting from defendant's co-indictee seeking deceased for the purpose of assaulting him, and not to any difficulty caused or brought on by deceased.

5. CRIMINAL LAW—REQUEST TO CHARGE—INSTRUCTIONS ALREADY GIVEN.

Where instructions given correctly cover every phase of the case, the refusal of other instructions requested is not error.

6. SAME—EVIDENCE—RELEVANCY.

In a prosecution for homicide, it was error to permit a witness for the state to testify that on the day of the homicide, he passed within a quarter of a mile of the home of defendant and his co-indictee, and in plain view thereof, in the absence of evidence that defendant or his co-indictees either saw or were in a position to see the witness, or that the latter saw one or more of them as he passed.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Silas Darling was convicted of manslaughter in the fourth degree, and appeals. Reversed.

M. V. Draffen and C. D. Corum, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

At the October term, 1905, of the circuit court of Cooper county, upon an information filed by the prosecuting attorney of said county on the 16th day of May, 1905, charging the defendant and one Ernest Darling and one Dorvil Burris, with murder in the first degree for the killing of one Samuel Jeffress, at said county, on the 13th day of March, 1905, the defendant was convicted of manslaughter in the fourth degree, and his punishment assessed at two years in the penitentiary. After filing unsuccessful motions for new trial, and in arrest of judgment, defendant appealed.

Prior to the trial of this defendant, his co-indictee, Dorvil Burris, had entered a plea of guilty to manslaughter in the fourth degree, had been sentenced to two years in the penitentiary, and been paroled. The state's evidence tended to show that the defendant and Ernest Darling were brothers, and lived with their parents on a farm in Cooper county, seven miles from Blackwater, and that Dorvil Burris lived with the Darlings and worked on the farm. Sam Jeffress, the deceased, prior to Saturday, March 11, 1905, lived with his mother in the village of Nelson, Saline county, and a few miles from Blackwater. On said Saturday the deceased went to work as a farm hand for one Charles Carroll, whose farm was situated about two miles from the Darling homestead. On Sunday afternoon Emmett Yeager visited at the Darling home, and told defendant and his brother that the deceased had gone to work for Charles Carroll. An unfriendly feeling had been existing between the deceased and both of the Darling boys, and as soon as Yeager had imparted this information to the brothers, Ernest Darling said he was going over to Carroll's next morning to "get" the deceased. Afterwards, in another room of the house, Ernest Darling repeated his threat in the presence of the defendant; and later, the same evening, the defendant said to witness Burris: "Yes, I believe I will go down with Ern to-morrow; Sam might make a knife play." On Monday the three young men worked about the Darling farm until noon, when the arrangements were made to go over to the Carroll farm. The defendant and his two companions went over to the barn of the Darling place and had a talk on the advisability of going after the deceased at that time, and Burris insisted that it would be best to wait, and some day get deceased on the road. Ernest Darling answered: "No, if I don't get him now, I never will get him." Defendant said: "No, Dorvil, I believe he ought to get him now." After the conversation at the barn, defendant and his brother went around on the side of the house where there was a pile of old iron. On the way to Carroll's the defendant said to his brother, "You will have to watch him if he is working with a hoe or scythe, or something to cut you with." In the same conversation Ernest said to defendant: "It will be a hell of a joke if he has gone to town and would not be there." When they neared the Carroll home, it was agreed, at the defendant's suggestion, that he should do the talking, defendant saying: "I will see Mr. Carroll and tell him I want to borrow a lister." Defendant accordingly went up to the house and asked if Mr. Carroll was there, and Mrs. Carroll replied that he had gone to town. Defendant then said that they would go down the river and meet him on his return. The three then walked down to the corn pens, when defendant told Burris to go back, and find out where the deceased was working. Burris went back and ascertained from Mrs. Carroll that deceased was working in a certain field. This field lay in a direction contrary to that from which Mr. Carroll would come in returning from Blackwater. The three young men crossed a wheat field, climbed over a wire fence, entered the field where the deceased was plowing, and walked towards him. The deceased stopped plowing as they approached, leaned against the handles of the cultivator, with his arms folded and the lines around his neck. Defendant and Burris engaged the deceased in conversation, while Ernest Darling gradually and stealthily slipped around to the side or back of deceased and hit him on the back of the head with what appeared to witness Burris to be a piece of iron. The blow felled deceased to the ground, and Ernest Darling struck deceased several times with the bar of iron after he fell. While striking the deceased, Ernest Darling said: "I reckon I will get even with you. You remember how you done me at Blackwater." After assaulting the deceased, Ernest Darling put the piece of iron in his pocket, and shortly afterwards stated to Burris that he had put it in a safe place where nobody could find it. The deceased tried to ward off the blows with his hands, which had leather gloves on, and these gloves were offered in evidence and identified, there being blood on them. The defendant, after the assault was committed by his brother, said: "I know what we will do, turn the team loose and make them think the team done it." About that time William Spry was passing through the field, and one of the three young men called to him. When Spry arrived upon the scene of the trouble, and saw the condition of deceased, he asked what was the matter, and defendant said, "They have had a little scrap here, Sam and Erne." Witness Spry found deceased in a sitting posture, with blood all over his face and in his hair, the lines still around his body, and his leather gloves lying on the ground in front of him—one on top of and across the other. Ernest Darling, who was standing some few feet away from Spry, said: "He has been bullying around Blackwater long enough. G__d d__n him, let him bleed." He also said to Spry, in the presence of defendant, that deceased had called him a vile name, that he couldn't stand it, and that he hit deceased and "knocked him plumb over the cultivator handles, with the lines around his shoulders." Defendant suggested that they take hold of the deceased and walk him to the house, but Spry discovered that deceased was not strong enough to walk. It was then suggested by defendant that they unhitch one of the mules and let deceased ride to the house; but Spry was of the opinion that deceased was not strong enough to do that. Then, at Mr. Spry's suggestion, defendant unhitched the mules from the cultivator, drove them to the Carroll house, and procured...