State v. Emory

• Decision Date: 09 December 1922
• Docket Number: No. 23750.,23750.
• Citation: 246 S.W. 950
• Parties: STATE v. EMORY.
• Court: Missouri Supreme Court

246 S.W. 950

STATE v. EMORY.

No. 23750.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Circuit Court, New Madrid County; Sterling E. McCarty, Judge.

Charles Emory was convicted of murder in the second degree, and he appeals. Affirmed.

Geo. IL Traylor, of New Madrid, for appellant.

Jesse W. Barrett, Atty. Gen., and Henry Davis, Asst. Atty. Gen., for the State.

Statement.

BAILEY, C.

Defendant was charged, by an information filed August 1, 1921, in the circuit court of New Madrid county, Mo., with murder in the first degree, in that at said county and state, on the 19th day of June, 1921, he feloniously, on purpose, willfully, deliberately, premeditatedly, and. of his malice aforethought, killed and murdered one Allen Kites. Ile was tried in September 1921, before a jury, and the latter returned the following verdict:

"We, the jury, find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for a period of ten years.

                                    "J. H. Tharp, Foreman."
                

The evidence in behalf of the state shows substantially the following facts: That on June 19, 1921, deceased, who was living two miles south of Gideon, in New Madrid county, Mo., accompanied by his two small sons, and his two stepsons, went to a point four miles south of his home in search of a yearling calf. The deceased and his son Frank took with them a pistol to shoot turtles and squirrels, which they alternately carried and shot. They found the yearling and drove it north to a pasture near defendant's home. The animal Was turned into the pasture, and deceased began to repair a fence. Several dogs ran after the animal, some of which belonged to deceased, and some to defendant. Deceased stopped his dogs by calling them, but defendant was unable to stop his dogs in this manner. Thereupon deceased ran after defendant's dogs with a drawn pistol, and succeeded in getting the dogs to stop chasing the animal. Deceased had passed defendant's house while pursuing the dogs, and returned to the place where he was repairing the fence, with his pistol in his hand. As deceased turned to come back, after chasing the dogs, appellant's wife said, "Charlie, he's going to shoot your dogs." Appellant was then in the house and came out with a shotgun. The two men approached each other, and appellant said to deceased, "Don't you shoot those dogs, or I'll shoot you." They were about eight feet apart at that time. Deceased was standing in the road, and appellant ways two or three feet from the porch. Deceased said to appellant, "You put up your gun, and I will put mine up." Appellant said, "No; you put your gun up, and I'll put mine up." At that time, deceased's right hand was hanging in a natural position by his leg, and he carried the pistol in it. After this conversation, deceased attempted to put his pistol in his right hip pocket, and as he did so appellant raised his gun and shot him in the head, from the effects of which he died 45 minutes later.

The evidence of defendant tended to show that, when deceased returned from the pursuit of the dogs, appellant was not in the house, but in the yard, where he had been loading furniture into a wagon, as he was that day moving from the house; that deceased, when he started in pursuit of the dogs, said, "Well, if you can't stop them, I can," which statement was accompanied with some profanity; that appellant said to deceased, "Mr. Kites, don't shoot my dogs," and that deceased said, "We'll just take it out on each other," and wheeled back; that appellant then said, "Let's don't have no trouble over the dogs;"`that when deceased said, "If you can't stop them, I can," defendant went to the wagon, and not into the house, got his shotgun from the wagon, where it was placed with his other goods, and loaded it; that they stood there, each telling the other to put up his gun, for perhaps five minutes; that deceased said to appellant, "Charlie, put your gun up;" and a witness, who was present, said, "Kites, put up your gun;" and deceased said, "Make him put up his gun;" and the witness then said, "You put up your gun, Mr. Kites, and I will make him put his up;" that deceased started, as if to put his gun in his pocket, and, as appellant turned to put his gun in the wagon, the deceased saw the gun leveled at his head, wheeled, and fired; that just preceding the shooting, and while the deceased had his pistol pointed at appellant's head, the deceased was attempting to work the trigger with his finger. Defendant testified that he shot deceased, because he believed the latter was about to kill him.

On September 27, 1921, the court rendered judgment, and pronounced sentence upon appellant in conformity to the terms of the verdict. Appellant's motion for a new trial and in arrest of judgnient having been overruled, he appealed the cause to this court. The instructions and rulings of the trial court will be considered, as far as necessary, in the opinion.

Opinion.

1. Appellant contends that the trial court committed error in giving to the jury instruction numbered 1, for the alleged reason that there was no evidence on which to base the same. The facts are fully stated heretofore, and clearly warranted the giving of an instruction on murder in the second degree. Section 3231, R. S. 1919; State v. Todd, 194 Mo. loc. cit. 394, 395, 92 S. W. 674; State v. McMullin, 170 Mo. loc. cit. 629, 630, 71 S. W. 221; State v. Frazier, 137 Mo. loc. cit. 340, 38 S. W. 913.

2. Instruction numbered 1 is also criticized, because the jurors were not required therein to find defendant guilty beyond a reasonable doubt. That part of said instruction complained of reads as follows:

"The court instructs the jury that if, bearing in mind these definitions, you believe and find from the evidence that the defendant, Charles Emory, at the county of New Madrid and state of Missouri, on or about the 19th day of June, 1921, or at any time before the filing of the information herein, willfully, premeditatedly, and with malice aforethought shot with a loaded shotgun one Allen Kites, and further find from the evidence that within a year and a day after such shooting, to wit, on or before the 19th day of June, 1921, the said Allen Kites died from the effects of such shooting and wounding done by the defendant aforesaid, you will find the defendant guilty of murder in the second degree, and unless you so Lind the facts you will acquit the defendant of murder in the second degree. If you find the defendant guilty of murder in the second degree, you will assess his punishment at imprisonment in the penitentiary for such length of time as you deem proper, not less than 10 years."

In State v. Bauerle, 145 Mo. loc. cit. 19, 46 S. W. 013, we said, in construing a similar instruction:

"It is sufficient to say that this instruction has been approved a score of times by this court, and is the settled law of this state."

See, also, State v. Todd, 191 Mo. loc. cit. 388, 02 S. W. 674.

The instructions should be considered as a whole. No. 4, given by the court, reads as follows:

"You are further instructed that the information contains the formal statement of the charge, but it is not to be taken as any evidence of defendant's guilt.

"The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence that establishes his guilt to your satisfaction and beyond a reasonable doubt, and the burden of proving his guilt rests with the state.

"If, however, this presumption has been overcome by the evidence, and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict.

"If, upon consideration of all the evidence, you have a reasonable doubt of the defendant's guilt, you should acquit; but, a doubt, to authorize an acquittal on that ground, ought to be a substantial doubt touching defendant's guilt, and not a mere possibility of his innocence."

This instruction and No. 1 should be construed together, and, when so considered, properly declared the law of the case. State v. Wiley Mathews, 98 Mo. loc. cit. 130, 10 S. W. 144, 11 S. W. 1135; State v. Wells, 111 Mo. loc. cit. 538, 20 S. W. 232; State v. Garth, 164 Mo. loc. cit. 565-306, 65 S. W 275; State v. McKenzie, 177 Mo. loc. cit. 715, 73 S. W. 1015; State v. Wertz, 191 Mo. loc. cit. 581, 90 S. W. 838; State v. Montgomery, 230 Mo. loc. cit, 671-672, 132 S. W. 232; State v. Robinson, 230 Mo. loc. cit. 722, 130 S. W. 140; State v. Murray (Mo. Sup.) 193 S. W. S30; State v. Burgess (Mo. Sup.) 193 S. W. 821-822; State v. Arnett (Mo. Sup.) 210 S. W. loc. cit. 83; State v. Lippman (Mo. Sup.) 222 S. W. loc. cit. 440. The above contention is without merit and overruled.

3. Appellant complains of that portion of instruction 2, given by the court, which reads as follows:

"If you find the defendant not guilty, under the...