State v. Davis

• Decision Date: 03 May 1938
• Docket Number: 35360
• Citation: 116 S.W.2d 110,342 Mo. 594
• Parties: The State v. Tom Davis, Appellant
• Court: Missouri Supreme Court

116 S.W.2d 110

342 Mo. 594

The State v. Tom Davis, Appellant

No. 35360

Supreme Court of Missouri

May 3, 1938

Appeal from Stoddard Circuit Court; Hon. James V. Billings Judge.

Reversed and remanded.

C A. Powell for appellant.

(1) Where there is any evidence of facts tending to show that accused acted in self-defense, an instruction on self-defense should be given. State v. Turnbo, 267 S.W. 847; State v. Lee, 259 S.W. 804, 303 Mo. 246. (2) It is error for an instruction to require that evidence of self-defense be established. Such an instruction places the burden upon the defendant to establish self-defense, whereas he is presumed to be innocent and the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Malone, 39 S.W.2d 786, 327 Mo. 1217; State v. Hickam, 95 Mo. 322; State v. Hill, 69 Mo. 453; State v. Alexander, 66 Mo. 159; State v. Wingo, 66 Mo. 181.

Roy McKittrick, Attorney General, and Russell C. Stone, Assistant Attorney General, for respondent.

(1) The verdict is in proper form and responsive. State v. Meinhardt, 82 S.W.2d 893; State v. Thomas, 82 S.W.2d 889; (2) The evidence was sufficient to sustain the verdict of the jury. State v. Harris, 87 S.W.2d 1028; State v. Gregory, 96 S.W.2d 47; State v. Gillman, 44 S.W.2d 146, 329 Mo. 306; Sec. 3662, R. S. 1929; State v. Hubbs, 242 S.W. 676, 294 Mo. 224. (3) Since appellant made no objection nor saved any exceptions to the questions propounded by the prosecuting attorney to appellant, Sid Gore and Alonzo Davis, this assignment is not properly before the court for review. State v. Wana, 245 Mo. 562; State v. Buckner, 80 S.W.2d 167; State v. Barbata, 80 S.W.2d 865, 336 Mo. 362. (4) The court did not err in submitting to the jury the prepared blank forms of verdict. State v. Davis, 92 S.W. 484, 194 Mo. 495; State v. Kile, 253 S.W. 709. (5) The court did not err in the giving of Instruction 9 on behalf of the State. State v. Priest, 114 S.W. 949, 251 Mo. 1; State v. Bidstrup, 237 Mo. 289, 140 S.W. 904; State v. Roberts, 242 S.W. 674, 294 Mo. 284; State v. Williams, 274 S.W. 50.

OPINION

Ellison, J.

The appellant was convicted of felonious assault without malice aforethought committed upon one C. D. Adams by cutting him with a knife, in violation of Section 4015, Revised Statutes 1929 (Mo. Stat. Ann., p. 2821). The punishment assessed by the jury was two years' imprisonment in the penitentiary. His brief on this appeal complains the verdict was not supported by substantial evidence, and of three instructions given by the court.

A brief recital of the facts will show that the evidence was amply sufficient to support the verdict, and that appellant's assignment charging the contrary is without merit. The prosecuting witness, Adams, conducted a general store at Powe in Stoddard County. The appellant and another man, Richard Lee, had been drinking the day of the assault, February 2, 1936, and had been in the store several times. Adams testified appellant was "pretty full." He bumped against a slot machine and tipped it against the wall. Adams asked both men to leave the store and sober up. Lee got his arm around appellant, and both went out. As they did appellant cursed Adams and invited him out on the porch.

The two men remained outside fifteen or twenty minutes, apparently plotting as Adams watched them through the window. Appellant was stroking his knife against the side of the privy. Another witness heard the appellant say "I am going in and get that" G-d-s-b. Presently appellant and Lee returned. Adams met them at the door, tried to hold it closed, and forbid them to enter; but appellant pressed on and Adams went out and pushed him back toward the edge of the porch. Thereupon appellant drew an open knife from his overcoat pocket and struck Adams on his upraised hand making a cut 4-1/2 or 5 inches long which went clear to the bone at one place. Dr. Riddle, who treated the wound expressed the professional opinion that it was made with a sharp edged instrument, and that it was possible but not probable that it could have been made by a broken bottle.

Sid Gore saw the encounter and substantially corroborated Adams as to how it occurred. He said appellant cursed Adams twice as he tried to reenter the store. Monroe Thornton saw appellant after he had stepped up on the porch. His right hand was partly in his overcoat pocket and was holding a knife. He said "I am going in and get the s-b-." He challenged Adams to come out and said he would finish him up.

The appellant's defense was self-defense. For a better understanding of the case we sketch the evidence on this issue. He admitted he and Lee had been drinking and admitted the encounter with Adams, but said he was not drunk. He declared he left the store voluntarily after bumping into the slot machine, and that before he had got off the porch another man, Beda Ashby, came up making a noise as he stamped the snow off his feet. Thereupon, he said, Adams ran out of the store, ordered him (appellant) not to come in, and began to strike and push him backwards toward the edge of the porch. He declared Adams had been drinking, and that he (appellant) was not entering the door but was five or six feet from it when Adams started the trouble. He was not carrying a knife that day and did not go out by the privy after leaving the store. When Adams assaulted him he drew a half-pint empty whiskey bottle from his pocket and struck Adams with it in self-defense. Adams was a larger and heavier man than he, and had pushed him clear down the steps. The appellant was generally corroborated by his companion Richard Lee, by Lonzo Davis, and by Beda Ashby as to stamping the snow off his shoes.

The court gave an Instruction No. 9, on self-defense, as follows:

"The right to defend one's self from danger, not of his own seeking, is a right which the law not only concedes but guarantees to all men. The defendant may, therefore have cut C. B. Adams and still be innocent, of any offense against the law. If at the time defendant cut C. B. Adams, if he did, he, the defendant had reasonable cause to apprehend on the part of C. B. Adams a design to do him some great personal injury, and there was reasonable cause for him to apprehend immediate danger of such apprehended design being accomplished, and to avert such apprehended design he, the defendant, did strike and cut C. B. Adams and at the time he did so, if he did, he had reasonable cause to believe, and did believe it necessary for him to so strike and cut C. B. Adams in the way he did, if he did, to protect himself from such apprehended danger, then, and in that case, such striking and cutting was not felonious, but was justifiable, and you ought to acquit him upon the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real or that danger should have been impending and immediately about to fall. All that is necessary is that defendant had reasonable cause to believe and did believe these facts. But before you acquit on the ground of self-defense, you ought to believe that defendant's cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence, you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in the cause, you can not acquit in such case, on the ground of self-defense."

Appellant assails the last sentence of the instruction, which we have italicized, contending that it placed the burden of proof upon him to establish self-defense, whereas he was presumed to be innocent and the burden was on the State to prove beyond a reasonable doubt that he did not act in self-defense. State v. Malone, 327 Mo. 1217, 1227, 39 S.W.2d 786, is cited in support of this contention. This Malone case does squarely hold self-defense is not an affirmative defense as to which the defendant has the burden of proof, and condemns an instruction so declaring. But the decision further concedes that where the State's evidence shows a killing by the defendant with a deadly weapon, nothing else appearing, murder in the second degree will be presumed unless evidence is offered to repel that presumption, and the "burden of evidence," or of going forward with evidence, is transferred to the defendant. Of course the same burden would be cast on the defendant where the State's evidence shows a felonious assault not resulting in death, nothing else appearing.

In other words where the State's evidence shows a felonious killing or assault, and nothing more, if the defendant relies upon self-defense for acquital he must adduce evidence substantially tending to prove it; though, if facts of that character are intermingled in the State's evidence the defendant can claim the advantage of them. [State Creighton 330 Mo. 1176, 1194, 52 S.W.2d 556, 562.] The point is, that there must be some substantial evidence of self-defense in the case before it can become an issue. There are numerous decisions holding the defendant is not entitled to an instruction on self-defense unless there is substantial evidence upon which to base it. But where self-defense...