State v. Farrell
| Decision Date | 25 May 1928 |
| Docket Number | No. 28683.,28683. |
| Citation | 6 S.W.2d 857 |
| Parties | THE STATE v. GEORGE W. FARRELL, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. — Hon. Charles T. Hays, Judge.
AFFIRMED.
Roy B. Meriwether and James P. Boyd for appellant.
(1) Instruction 3 was erroneous. There was no evidence upon which the court had a right to instruct on the question of a premeditated killing, or a killing of malice aforethought. The words "without just cause or provocation" should have been defined to the jury. In this instruction the court undertook to define manslaughter, and the definition as given was stated in these words, "manslaughter is the killing of a human being not herein declared to be murder or excusable or justifiable homicide." Sec. 3236. R.S. 1919. (2) There was no evidence upon which the court should have instructed the jury to find the killing was not excusable homicide, thereby requiring the jury to find a fact not in evidence. In this instruction the court used the expression justifiable or excusable homicide and not in the lawful defense of his person, as defined in other instructions, thus requiring the jury to find three distinctive things, and injecting in the disjunction excusable or justifiable homicide and then connecting by a conjunction "and not in the necessary defense of his person." In the same instruction the court defined excusable homicide as used in the instructions to mean the accidental killing of another. Secs. 3233, 3234, R.S. 1919. That the definition of excusable homicide was incorrect, under the evidence in this case, in that it wholly disregarded the second subdivision of the definition of excusable homicide, as given in Section 3234, supra. Likewise, there was no evidence in the case, not even one word of evidence, of accidental killing or of excusable homicide, as defined by the statute defining said excusable homicide. State v. Buerk, 199 Mo. 275; State v. Elsey, 201 Mo. 561. (3) This instruction was misleading, when it used the word disjunctive conjunction "or" and then connected the words "justifiable or excusable homicide" with the conjunction "and" in the expression "justifiable and not in the lawful defense of his person." (4) Instruction 4, given by the court on its own motion on the question of self-defense, is contradictory and in conflict with Instruction No. D-1, which was given for the defendant. Instruction 4 left out the most essential elements of self-defense, and that is, that the defendant acted in good faith upon the situation, as it appeared to him and under a real apprehension of danger to himself. Instruction 7 could have no greater effect than to limit the influence of the legitimate arguments of counsel. Such instructions have been condemned in many states. Tucker v. State, 167 Ala 1; Gibson v. State, 26 Fla. 109; Man v. State, 124 Ga. 760; Peo. v. Ambach, 247 Ill. 451; State v. Butts, 107 Iowa. 673; Com. v. Maddox, 207 Mass. 152; State v. Price, 135 Minn. 159. (5) This cause should be reversed and remanded, because there is no substantial evidence to sustain the verdict. There is no evidence of any witness who saw the first shot fired but who testified to the fact that the deceased was striking at the defendant, or advancing upon him, that he struck him, that the defendant never attempted to strike him, but only attempted to ward off his blows or push him from him, the deceased being a young, strong and healthy man, and the defendant an old, weak and afflicted person. The verdict was clearly one of passion and prejudice of the jurors, and not a verdict in response to the evidence in the case.
North T. Gentry, Attorney-General, and J.D. Purteet, Special Assistant Attorney-General, for respondent.
(1) The evidence was sufficient to take the case to the jury. Where the evidence is conflicting, the weight thereof is for the jury to determine. This court is concerned with the question of whether there is substantial evidence in support of the verdict. Where such is the case, this court is precluded from disturbing the jury's verdict. State v. McKenzie, 177 Mo. 712; State v. Conley, 255 Mo. 185; State v. Sebastian, 215 Mo. 69; State v. Trent, 278 S.W. 678; State v. Williams, 274 S.W. 52; State v. Carey, 282 S.W. 25. (2) Instruction 3 was properly given. It is a correct declaration of the law of manslaughter. It is not erroneous in that there was no evidence to support it. State v. Gore, 292 Mo. 186; State v. Glenn, 262 S.W. 1032; State v. Hart, 274 S.W. 386. (3) Instruction 4 clearly stated the law of self-defense. It is not erroneous in that it conflicts with instruction numbered D-I. It is in perfect harmony therewith, as in substance it states everything which D-I declares. Different language, perhaps, is used, but that is no legal objection. State v. Tighe, 289 S.W. 830.
In December, 1926, in the Circuit Court of Monroe County, the defendant was tried on a charge of murder in the second degree. The jury found him guilty of manslaughter and assessed his punishment at five years in the penitentiary. Judgment was pronounced accordingly and the defendant appealed.
The defendant was charged with killing his nephew, Leslie Farrell, thirty-nine years of age, of medium height and weight and good health. The defendant was sixty-eight or sixty-nine years of age and in feeble health.
Defendant's brother, Tom Ed Farrell, seventy years of age, had two sons. Leslie, the deceased, and Gene. The defendant brought a partition suit against Tom Ed Farrell, and had feeling ensued between the defendant and his brother's family on account of it. On October 23, 1926, Tom Ed Farrell and his two sons met the defendant in Paris and had a conversation in which ill feeling was expressed. Leslie Farrell at that time asked the defendant why he was always nosing into everything; that he had done everything he could to turn the heirs against his father; always trying to make trouble. Among other things defendant said: "I aint able to fight none of you, nor your dad aint able to fight." And then Tom Ed said: "If you want to fight I will fight you anywhere." That was all that occurred that day.
On November 13, 1926, following, the defendant met Leslie Farrell in the town of Madison, where Leslie was delivering milk. He had a half-gallon bucket on his arm. Defendant shot him down in the street. Leslie died almost immediately.
I. The appellant claims that the evidence is insufficient to support a verdict of manslaughter; that the only Manslaughter: evidence in the case shows that the defendant shot Self-Defense. purely in self-defense.
Several witnesses saw the parties after the difficulty began. No one heard anything said between defendant and Leslie. A girl named Mae Meals was standing in a grocery store and saw Leslie Farrell first. "He backed into my view coming from the east going backwards, and George Farrell was coming towards him with a gun; George Farrell had a gun when I saw him." She further said that Leslie Farrell was going back west "with his hands up like this" (indicating).
She didn't want to see the trouble and turned her head, and heard three shots; two quite close together, and then a pause and a third one. She next saw Leslie Farrell lying on the walk, trying to raise his arm. She was asked how soon after she saw Leslie Farrell going back and George Farrell coming towards him with a gun did she hear the gun? She answered: "It seemed to me almost immediately."
On cross-examination she was asked if at the preliminary examination, she didn't make this answer to a question:
"Well, it just seemed to me I had not more than turned my head until I heard the gun." She answered that that was right; a lengthy cross-examination did not cause her to vary from those statements.
One Clara Bunnell was standing close to the Meals girl at the time. She saw Leslie Farrell "when he ran back in front of Baker's store with his hands up." She didn't see George Farrell, but she heard the shots. And she didn't see Leslie Farrell after she heard the shots. From her testimony the inference is reasonable that Leslie Farrell again passed out of her sight advancing upon the defendant. Miss Meals said to her. "There is a gun," and witness thought there was going to be a fight and she didn't want to see it.
A boy named James Robinson, ten years of age, was sworn. He was questioned closely about his ability to understand the nature of an oath. He said he did not, but he knew if he didn't tell the truth he would go to jail. He saw Leslie going up the street when George stopped him and they talked a little while. Witness didn't know what they said. He continued:
Witness was then asked what Leslie Farrell was doing while George was shooting. He answered:
One J.M. Forrest testified that he was in the drug business and standing in the entrance to his drug store when defendant came to him and asked him to call the sheriff, that he had shot a man that struck him. Witness said there was a red spot on defendant's check, not bleeding. He didn't notice any other marks or scratches.
Delbert Pierce testified that he saw George W. Farrell going east and Leslie Farrell going west, and they met, and in a few seconds the two were scuffling pushing and shoving, and then pretty soon he saw they were beginning to separate and he heard a shot fired. He said: "Though at first I seen George...
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