State v. Goddard

• Citation: 48 S.W. 82,146 Mo. 177
• Parties: STATE v. GODDARD.
• Decision Date: 21 November 1898
• Court: United States State Supreme Court of Missouri

48 S.W. 82

146 Mo. 177

STATE v. GODDARD.

Supreme Court of Missouri, Division No. 2.

November 21, 1898.

HOMICIDE — INSTRUCTIONS — ATTORNEY GENERAL — CONFESSION OF ERROR — CHANGE OF VENUE — EVIDENCE — PRODUCTION OF DOCUMENTS.

1. In a prosecution for murder, the court instructed that, if defendant voluntarily entered into the difficulty that resulted in his killing deceased, there was no self-defense in the case. Held error, since it ignored defendant's intention in so doing.

2. The attorney general may properly confess error when he deems it apparent.

3. Rev. St. 1889, § 4156, as amended by Acts 1895, pp. 162, 163, provides that the petition for a change of venue shall set forth the grounds on which it is sought, and be supported by the affidavits of petitioner and two credible citizens of the county, and the allegations shall be proved to the satisfaction of the court, and the prosecuting attorney may in such case offer evidence in rebuttal. Held that, where an accused makes a prima facie case thereunder, a change should be awarded, if no rebuttal evidence is offered.

4. It was competent to offer in evidence the door of the room in which a homicide occurred, to show the location of pistol balls therein, after first showing that it had remained in the same condition since the homicide.

5. Evidence of a bill of sale from deceased to his wife was competent to show a motive for killing deceased, who charged that defendant was defrauding his wife of her property.

6. Defendant was entitled to the production of papers found on the body of deceased, which deceased, after he was shot, said consisted in part of his wife's checks to defendant, it being claimed that defendant wanted to get rid of the deceased so as to defraud his wife of her property.

7. It was competent for the defendant to prove that the checks found on the body of deceased were forgeries.

8. Under Laws 1895, p. 284, providing that comparison of a disputed writing with any writing proved to be genuine shall be permitted to be made by witnesses, and such writing and the evidence of witnesses respecting the same may be submitted as evidence of the genuineness or otherwise of the writing in dispute, it was competent for accused to introduce other writings of deceased for purposes of comparison with the check.

Appeal from circuit court, Jackson county; George F. Longan, Special Judge.

Jefferson D. Goddard was convicted of murder, and he appeals. Reversed.

I. N. Watson and Warner, Dean, Gibson & McLeod, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.

GANTT, P. J.

From a conviction of murder in the second degree, defendant appeals to this court. The homicide occurred in the Woodland Hotel, in Kansas City, Mo., on the 2d day of April, 1897. The prisoner was indicted on the 20th day of April, 1897. Judge Wofford being incapacitated to try the case, Judge Longan, of the Pettis circuit, was called to try it. On 31st day of October, 1897, the cause was heard, but resulted in a mistrial, by disagreement of the jury. Defendant applied for a change of venue, and adduced evidence in support, but his application was denied. A motion for continuance was entered, heard, and overruled. A second trial was had, resulting in the conviction from which this appeal is taken.

1. The attorney general concedes that the trial court erred in the sixth instruction, which declared, among other things, that, if the jury believed "from the evidence that the defendant voluntarily entered into the difficulty that resulted in the killing of Frederick J. Jackson by the defendant, then there is no self-defense in this case." The intention with which defendant entered into the difficulty is entirely ignored in this instruction. No distinction is made between the act of a person voluntarily seeking a difficulty with another in order to wreak his vengeance on him, and that of a person voluntarily engaging in a combat In a sudden heat of passion, and without any design of doing his adversary any great bodily harm, or without any purpose of gratifying his malice. The distinction is all-important. State v. Pennington (not officially reported) 47 S. W. 799; State v. Partlow, 90 Mo. 615, 4 S. W. 14; State v. Gilmore, 95 Mo. 560, 8 S. W. 359, 912. In a word, it is the difference between the right of imperfect self-defense and murder in the first degree. When one enters into or seeks a difficulty with another in order that he may wreak his vengeance, and slays him, then he loses his right of self-defense, even if forced to kill his adversary in order to save his own life; and the law accounts it murder in the first degree. But if, without such felonious and murderous purpose, he begins a quarrel, or voluntarily enters into a difficulty, and, in the heat of passion, slays his adversary, while the law will not, because of his being in fault, excuse him altogether, yet it will consider the intent and absence of malice aforethought, and adjudge him guilty of manslaughter only. State v. Berkley, 92 Mo. 53, 4 S. W. 24, and cases above cited. It it entirely proper for the attorney general to confess error, as he has in this case, when he deems it apparent.

2. Counsel for defendant urge other errors. it is deemed unnecessary to discuss the refusal of the continuance, as that can be readily avoided by producing the witness on the next trial. If, however, the court erred in refusing the change of venue, the injury can only be remedied by awarding it. This court has long observed the conservative rule of deferring much to the finding of the trial courts on questions of fact. This principle has been often invoked and applied in applications for change of venue, with the qualification, however, always, that the action of the court did not appear to be an abuse of discretion. This record presents a stronger case than any to be found in the decisions of this court. In support of his application, the defendant files his affidavit and that of two compurgators, to the effect that he could not obtain a fair and impartial trial in Jackson county, on account of the prejudice of the inhabitants of said county. The learned criminal court limited the number of witnesses on the...