State v. Gifford
| Decision Date | 31 May 1916 |
| Docket Number | 19394 |
| Citation | 186 S.W. 1058 |
| Parties | STATE v. GIFFORD. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.
John Gifford was convicted of manslaughter in the fourth degree and he appeals. Judgment affirmed.
R. L Ward, of Caruthersville, and L. L. Collins, of Springfield for appellant.
John T. Barker, Atty. Gen., and Lee B. Ewing, Asst. Atty. Gen., for the State.
Defendant was charged by an information filed in the circuit court of Pemiscot county with murder in the first degree, for that, as it was alleged, he had killed one Bob Palmer. On his trial he was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the penitentiary for a term of two years. He has appealed in due form.
The facts of the case are few and simple. On the evening of October 3, 1914, the defendant, deceased, and three other men, namely, Jack Wyatt, Eph Brown, and Will Dixon, were engaged in gambling for money by means of the game commonly called "craps." All five of them seem to have been drinking and were more or less drunk. In the course of the game, and while deceased was performing a maneuver called in the vernacular and in the nomenclature of the game "rolling the dice," defendant picked up the dice and said "it wasn’t right." Deceased said it was right, and defendant repeated that it was not right. After a further short exchange of contradictions, defendant called deceased a "damned lying son of a bitch," and deceased returned the compliment and epithet. Thereupon both defendant and deceased rose to their feet. Defendant grabbed deceased by the throat with his right hand and struck him in the eye, or over the eye, with his left hand. They then clinched and began fighting, and while so clinched deceased cut defendant several times with a small pocket knife, wounding him very seriously. Deceased then got loose from defendant and ran out through a hole in the corncrib (wherein theretofore the game had been proceeding), and defendant, as deceased ran, picked up a certain club (being the same with which the information charges that the homicide was committed), and, with the remark, "I am cut, and cut bad," and "I ought to kill the son of a bitch," threw the club at deceased, striking him a slight blow. After throwing the club defendant again picked it up and ran with it out of the crib after deceased. No witness in the case saw either of them thereafter till the fatal blows were struck. Shortly after defendant and deceased left the corncrib the sound of blows was heard on the outside by Wyatt and Dixon, who were yet in the crib. Brown and Dixon went out of the crib, and after proceeding some 100 yards came upon deceased lying upon the ground and defendant standing over him with a club upraised. Deceased was then unconscious, and does not seem to have spoken thereafter, but remained unconscious until his death, which occurred some 48 hours later. Upon the trial the proof showed that deceased came to his death from concussion of the brain resulting from a blow upon his head.
Except for some testimony as to the nature and seriousness of the wounds which were inflicted upon defendant by deceased when the latter cut defendant, all of the testimony adduced in defendant’s behalf came from himself. No one else saw the blows struck which resulted in the killing of deceased. It seems to have been dark at the time, at least the crap game was being lighted by a lantern, and defendant and deceased at the time of the last exchange of blows were some 60 to 100 yards away from the corncrib and from the other men with whom they had been gambling.
Defendant’s own version of the immediate facts of the homicide is that after he got out of the corncrib he followed after the deceased until he became exhausted from his wounds and fell down; thereupon deceased turned around and started back toward him; that he (defendant) called to deceased not to come, but that deceased kept coming toward him; and that he then struck deceased with the club in self-defense, because he thought that deceased had the knife with which he had already cut him and was again about to assault him therewith. Defendant offered evidence tending to prove his good reputation for peace and quietude and for being a lawabiding citizen in the community in which he lived.
The facts and points upon which defendant relies for reversal will be found set out in the opinion in connection with the discussion of them.
I. Defendant complains that the instruction given by the court upon manslaughter in the fourth degree erroneously stated the punishment fixed by statute for this crime. We find this to be true. Ordinarily this would be reversible error (State v. Sands, 77 Mo. 118; State v. McNally, 87 Mo. 644); certainly in the absence of very clear indications that the jury were thereby in no wise misled, or unless it appeared that the defendant was the beneficiary, and not the victim, of the error. But we are precluded from examining this point in this case for the reason that defendant’s sole assignment of error in his motion for a new trial upon the point now urged is thus stated:
"The court erred * * * in not declaring all the law in this case necessary for the information of the jury in arriving at their verdict."
This is not a sufficiently specific assignment of an error urged here as being bottomed upon the giving by the court nisi of an erroneous instruction, or for the failure of the court to give any requisite instruction. State v. Taylor, 183 S.W. loc. cit. 301; State v. Levy, 262 Mo. loc. cit. 190, 170 S.W. 1114; State v. Sykes, 248 Mo. loc. cit. 712, 154 S.W. 1130; State v. Dockery, 243 Mo. 592, 147 S.W. 976; State v. Wellman, 253 Mo. loc. cit. 316, 161 S.W. 795; State v. Chissell, 245 Mo. loc. cit. 554, 150 S.W. 1066; State v. Horton, 247 Mo. loc. cit. 663, 153 S.W. 1051. The trial court is to be allowed the last clear chance to correct its own errors, and thereby, perhaps, save the delay and expense of an appeal.
The above cases and many others which we might cite but follow the analogous statutory rule in civil cases, which requires motions to be specific (section 1841, R. S. 1909), and they accentuate the idea that at some stage of the trial of a criminal case the defendant is saddled with the duty of taking the trial court measurably into his confidence. We therefore disallow this assignment of error, the more willingly since, when we look to the verdict, it is difficult to see wherein the error here in any wise hurt defendant; for the error lay in a clerical misprision whereby the maximum fine and the maximum jail sentence were misstated. But neither the fines nor the jail sentences fixed by statute as punishment for this crime seem to have interested the jury which tried this defendant.
II. The defendant prepared and requested the court to give the following instruction:
"The court instructs the jury that, although you may believe that the defendant ran after the deceased, but that the defendant abandoned and quit his pursuit of deceased, and the deceased attacked defendant, then the right of self-defense attached to defendant, and the defendant had the right to strike and kill deceased if he thought at the time he did so that he was then and there in immediate danger of being struck and killed by deceased."
This request the court refused, partially at least, we infer,...
To continue reading
Request your trial