State v. Ferguson

• Citation: 182 S.W.2d 38,353 Mo. 46
• Decision Date: 05 September 1944
• Docket Number: 38857
• Parties: State v. Grace Ferguson, Appellant
• Court: United States State Supreme Court of Missouri

182 S.W.2d 38

353 Mo. 46

State v. Grace Ferguson, Appellant

No. 38857

Supreme Court of Missouri

September 5, 1944

Reported at 353 Mo. 46 at 59.

Original Opinion of June 5, 1944, Reported at 353 Mo. 46.

OPINION

PER CURIAM

On Motion for Rehearing.

In her motion for a rehearing the appellant agrees with the view that "imperfect self-defense" means no more in the law of homicide than that if there is any evidence in the case, either from the state's evidence or from the defendant's evidence (State v. Wright, 352 Mo 66, 175 S.W.2d 866), from which the jury could find a lack of malice on the part of the accused she is entitled to an instruction on manslaughter. The absence of malice, if found by the jury, reduces the degree and grade of the offense from murder to manslaughter.

But the appellant contends that we have overlooked certain testimony which brings the case within State v. Roberts, 280 Mo. 669, 217 S.W. 988. In addition to the testimony set forth in the principal opinion the appellant directs our attention to that part of her cross-examination in which the Prosecuting Attorney was questioning her with reference to statements she was supposed to have made at the police station and particularly with respect to what she had said [ILLEGIBLE WORD] when the second shot was fired. The [ILLEGIBLE WORD] he had not asked her certain questions [ILLEGIBLE WORD] answers, among others:

"Question. Was that in your bedroom? Answer. 'No, in the kitchen.' Question. 'Where were you?' Answer. I think I was in the kitchen door, as I said, I had stepped out to see what had happened and whether he was coming back at me or what.' Are those your words, Mrs. Ferguson? A. Yes."

In the first place, in State v. Roberts, the court was considering a self-defense instruction which covered the subject of voluntarily entering or renewing a difficulty as a pretext for the defendant's taking the life of his assailant. However, the court did say that if the "appellant wrongfully invoked or sought a renewal of the quarrel with the intention of merely overawing the deceased, or of holding him in check while a discussion could be had and a settlement or a mutual understanding reached as to their future status towards each other, or to accomplish any result other than the death or great bodily harm of the deceased, the appellant, while he would not be entitled to invoke the perfect right of self-defense, would under the well...