State v. Edwards

• Decision Date: 14 May 1907
• Citation: 203 Mo. 528,102 S.W. 520
• Parties: STATE v. EDWARDS.
• Court: Missouri Supreme Court

102 S.W. 520

203 Mo. 528

STATE v. EDWARDS.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. CRIMINAL LAW — TRIAL — INSTRUCTION UNSUPPORTED BY EVIDENCE.

In a murder trial, it was reversible error to instruct that the law does not permit one to seek a combat or voluntarily put himself in the way of assault so that, when hard pressed, he may have a pretext to kill his assailant, where there was no substantial evidence to sustain the instruction.

2. SAME — ERRONEOUS INSTRUCTION — DEFENDANT'S RIGHT TO CHALLENGE.

Where defendant in a criminal trial, if guilty at all, is guilty of a higher grade of offense than the one upon which he is convicted, he may not complain of an instruction upon a lower grade of crime, though unsupported by evidence, but, if the court undertakes to give such an instruction, it must correctly declare the law or defendant may challenge its sufficiency.

3. HOMICIDE — MANSLAUGHTER.

Threats by decedent made a week or 10 days before the homicide were insufficient to form a basis for excitement and passion reducing the offense from murder to manslaughter.

4. CRIMINAL LAW — TRIAL — ARGUMENTATIVE INSTRUCTION — REFUSAL.

In a murder trial, it was proper to refuse to instruct that, though the shot fired by defendant struck decedent in the back or side and ranged forward, if defendant believed and had

reasonable grounds to believe decedent was about to kill him or inflict great bodily injury on him and shot in good faith to protect himself, the act was justifiable; the instruction being argumentative.

5. SAME — MATTER COVERED BY COURT'S CHARGE.

In a murder trial, it was not error to refuse an instruction on a matter covered by instructions given.

6. HOMICIDE — MURDER — EVIDENCE — UNCOMMUNICATED THREATS — ADMISSIBILITY.

In a murder trial threats by decedent uncommunicated to defendant are admissible, not to show defendant's apprehension of danger, but as throwing light upon decedent's acts and conduct at the time of the homicide, and to show who was the aggressor.

7. CRIMINAL LAW — EVIDENCE — DECLARATION BY DEFENDANT'S SON.

In a murder trial, on the state's cross-examination of defendant's son, it was not reversible error to allow a question whether he did not say in the presence of another after hearing of the shooting, "Well, it has happened."

8. HOMICIDE — EVIDENCE — CIRCUMSTANCES PRECEDING ACT.

Where, in a murder trial, it was conceded the killing was done with a shotgun, evidence that a few days before the killing defendant's son bought two revolvers, and as to why he bought them, was inadmissible.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

James P. Edwards was convicted of manslaughter, and he appeals. Reversed and remanded for new trial.

This cause is here by appeal on the part of the defendant from a judgment of the circuit court of Audrain county convicting him of manslaughter in the fourth degree. On the 27th day of March, 1906, the prosecuting attorney of Audrain county filed an information, duly verified, charging the defendant with murder in the first degree. The date of the homicide charged was March 22, 1906, the name of the party charged to have been killed was John Oldham, and the weapon used was a shotgun. At the June term, 1906, of the Audrain county circuit court, the defendant was put upon his trial upon the charge contained in the information. We shall not undertake to give in detail all of the testimony introduced upon the trial. It will suffice to give the tendency of the testimony to establish certain facts involved in the prosecution.

The state's evidence tended to prove that the defendant and the deceased were engaged in the operation of a coal mine on defendant's farm, near Thompson, in Audrain county. A written contract had theretofore been entered into between them, by the terms of which the deceased agreed to pay certain sums at stated times as royalty, and that the deceased was to have the exclusive operation of the mine. In addition to the operation of the mine, the deceased and his family were given the right to, and did, occupy a dwelling house and a small piece of ground belonging to the defendant near said mine Some time prior to the 22d of March, 1906, there were differences between them as to the amount due and as to the way the mine was being operated. Accordingly, defendant attempted to terminate the lease and instructed the deceased to vacate the mine and also the dwelling house. Deceased and his family moved out of the house over to the Northcutt place, and moved some of his tools from the mine a few days prior to the date of the homicide. On the morning of the homicide the deceased went to the mine for the purpose of getting some tools and a telephone box, and also for the purpose of moving some of his boxes out of a little stable in order that the defendant might put some hay in the stable. Mr. Oldham, the deceased, claimed that the defendant was still owing him for certain work that he had done on the dwelling and barn and mine, and also for an expensive piece of machinery that he purchased and placed in the mine. A short time before noon Mr. Oldham left the mine, going in the direction of the defendant's house; the defendant having gone to the house about one hour before. There was no witness present at the time of the shooting, with the exception of the defendant himself. As to what happened at the time of the shooting the state introduced in evidence a short statement signed by the defendant, made by him before the coroner, the substance of which was that the deceased came into the defendant's bedroom, commenced talking to the defendant in a threatening and angry manner, thrust his hand into his overcoat pocket as though in the act of drawing some weapon, and that the defendant shot him twice, using a double-barreled shotgun. The coroner, Dr. P. E. Coil, who resided at Mexico, Mo., learned of the shooting and went at once in company with the prosecuting attorney and the sheriff to the home of the defendant, reaching there late in the afternoon of that day. The coroner testified that he found the body of the deceased in the bedroom of the defendant; that deceased was lying on his back with his head close to a stove, his feet being about the center of the room. Near his head was the footrest on the stove, which was broken, the break appearing to be recent. In respect to the nature and character of the wounds inflicted upon the deceased, the testimony as introduced by the state also tended to show that there were two wounds, one on the right side by the back and the other on the left side of the back; the wounds ranging up, the loads scattering, and some of the bullets going out in front. It was claimed that one of the bullets was deflected and some were still found in the body of the deceased. The deceased had on an overcoat, undercoat, shirt, undershirt, pants, and overalls. After the killing the testimony tended to show that he had no weapon whatever in any of his pockets but a small pocketknife, which was found in his pants pocket under his overalls. In his right-hand overcoat pocket was found a telephone receiver. The testimony of the sheriff was substantially that he examined the room in which the deceased's body was found, but that he could find no bullets, and that, while the deceased's clothing was very bloody, he found no blood on the carpet. There was another witness who testified substantially that the deceased, before leaving the mine, got his wood rasp, which he placed in his outside overcoat pocket. This rasp was about an inch and a half wide and about 18 inches long, and it was found by witness Ridgway about the premises of the defendant after the snow melted, some three or four days after the killing. It was found about five or six feet east of the porch, which was the porch opening into the bedroom where the body of the deceased was afterwards found.

On behalf of the defendant the evidence tended to show that he had settled with the deceased in full, and that deceased was in debt to him and in debt to his miners and could not continue to run the mine; but, in order to be liberal toward the deceased, the defendant agreed to pay him $50 more, which the deceased refused to accept and insisted on having still more. Numerous and divers threats by the deceased to do the defendant some great personal injury were also shown. These threats were made by the deceased and were to the effect that he was not satisfied with the settlement; that he had several hundred dollars in the coal mine; that he was going to have it; and that defendant could not live unless he paid the deceased. These threats were communicated to the defendant; the one made to the defendant's son being communicated within an hour or two of the final difficulty. The defendant's evidence further tended to show that after the deceased vacated the mine the defendant's son took possession and began running it, and that the deceased came down to the mine on the morning of the difficulty, and was looking after some of his property remaining at the mine and in the stable. The defendant and his father-in-law came down to the barn with a load of hay, which was unloaded in the barn, at which time they say the deceased refused to speak to the defendant. Before going to the barn, the defendant's son warned the defendant that the deceased had threatened him, and that he had better not go down while the deceased was there. Immediately after unloading the hay, the defendant went back to the house and went into his bedroom and lay on the lounge. In the course of half an hour or an hour the deceased came up to the defendant's house, carrying a telephone box, met the defendant's wife, and asked if he might leave the box there. She replied that he could, and deceased set the box down, and then asked for the defendant. Mrs. Edwards told him that the defendant had hurt his back and was lying down on the bed in his room, and invited the...