State v. Evans

• Decision Date: 21 May 1895
• Citation: 31 S.W. 34,128 Mo. 406
• Parties: STATE v. EVANS.
• Court: Missouri Supreme Court

31 S.W. 34

128 Mo. 406

STATE v. EVANS.

Supreme Court of Missouri, Division No. 2.

May 21, 1895.

ASSAULT WITH INTENT TO KILL — INDICTMENT — SELF-DEFENSE.

1. An indictment charging that defendant "did then and there * * * strike, cut, stab, and thrust, with intent then and there him, the said S., to kill and murder," etc., is fatally defective as failing to state who it was that was cut, struck, or stabbed.

2. Where one attacks another, intending only an ordinary battery, the fact that such attack was made voluntarily, and of his own free will, does not deprive assailant of his right of self-defense.

Appeal from circuit court, Dunklin county; John G. Wear, Judge.

Solomon D. Evans was convicted of assault with intent to kill, and appeals. Reversed.

Instruction No. 2 was as follows: "No. 2. The right to defend one's self against danger not of his own seeking is a right which the law not only concedes, but guaranties, to all men. The defendant may, therefore, have struck the witness Lee Stewart with a knife, and still be innocent of any offense against the law. If, at the time he struck the said Stewart with a knife, he had reasonable cause to apprehend on the part of said Stewart a design to do him some great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger he struck said Lee Stewart, and at the time he did so he had reasonable cause to believe, and did believe, it necessary for him to use his knife to protect himself from such apprehended danger, then, and in that case, such striking was not felonious, but was justifiable, and you ought to acquit him on the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real, or that the danger should have been impending, and immediately about to fall. All that is necessary is that the 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 this cause, you cannot acquit in such case on the ground of self-defense, even though you may believe that the defendant really thought he was in danger. But, on the other hand, gentlemen, the law does not permit a person to voluntarily invite or seek a combat, or put himself in the way of being assaulted, in order that, when hard pressed, he may have a pretext to do harm to his assailant. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any willful act of his, or where he voluntarily and of his own free will entered into it; no matter how imminent his peril may become during the...