State v. Goode
| Decision Date | 29 May 1917 |
| Citation | 195 S.W. 1006,271 Mo. 43 |
| Parties | THE STATE v. JOSEPH GOODE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Texas Circuit Court. -- Hon. L. B. Woodside, Judge.
Reversed and remanded.
Hiett & Scott, Lamar & Lamar and T. J. Hale for appellant.
(1) (a) Defendant's statement at the coroner's inquest was not a voluntary statement and should not have been admitted in evidence. State v. Young, 119 Mo. 517-522; State v. Naughton, 221 Mo. 398; State v Thornton, 245 Mo. 440; State v. Thomas, 250 Mo 211; State v. Motsinger, 180 S.W. 856. (b) If this statement was permitted to go before the jury, then defendant was entitled to an instruction submitting the question to the jury of whether or not such statement was a voluntary statement. State v. Thomas, 250 Mo. 215. (2) The court should have permitted Mrs. Goode to testify concerning the former assault upon her by the deceased in the presence of the defendant. The defendant had the same right under the law to defend his mother that he had to defend himself. R. S 1909, sec. 4451; Kelly's Crim. Law (2 Ed.) p. 462, sec. 523; 21 Cyc. 826d-893; 21 Cyc. 972e; State v. Wilson, 250 Mo. 330; State v. Felker, 27 Mont. 451; State v. Foster, 102 Tenn. 33; State v. Sinclair, 250 Mo. 290; State v. Turner, 246 Mo. 617. (3) The court erred in giving Instruction 3 for the State. This is a palpable comment on the defendant's evidence. State v. Finkelstein, 269 Mo. 612; State v. Evans, 267 Mo. 163; State v. Mintz, 246 Mo. 540. (4) Instruction 4, given by the State, should not have been given because there is no evidence on which to base such an instruction. State v. Larkin, 250 Mo. 245; State v. Elsey, 201 Mo. 561; State v. Bartlett, 170 Mo. 672; State v. Little, 228 Mo. 309. The uncontradicted evidence shows that defendant was running and being pursued by his father when the fatal shot was fired. If he had withdrawn in good faith from the difficulty and was fleeing, and was pursued, the right of self defense revived, although he had voluntarily brought on the difficulty. This instruction ignored this right and practically deprived the defendant of all right of self defense. State v. Wilson, 242 Mo. 499; State v. Heath, 237 Mo. 267; State v. Heath, 221 Mo. 589; State v. Cable, 117 Mo. 385; State v. Partlow, 90 Mo. 627; State v. Lockett, 168 Mo. 480; State v. Little, 228 Mo. 306; State v. Rapp, 142 Mo. 443; State v. Adler, 146 Mo. 18; State v. Sebastian, 215 Mo. 58. (5) (a) The evidence is not sufficient to sustain a conviction. Under the undisputed evidence, the killing was justifiable, and this court should not only reverse the case, but direct the discharge of the defendant on the ground that the evidence clearly shows that the killing was justifiable. State v. Bartlett, 170 Mo. 670; State v. Hogan, 164 Mo. 654; Remarks of Gantt, J., in State v. Talmage, 107 Mo. 572. (b) If defendant and his mother are believed, then their testimony shows beyond question that the killing was in self-defense. If their testimony is not believed, then there is nothing left but conjecture as to how it did occur. A verdict based upon mere suspicion or conjecture will not be permitted to stand. State v. Gordon, 199 Mo. 596; State v. Francis, 199 Mo. 693.
Frank W. McAllister, Attorney-General, and Lewis H. Cook, for the State.
Defendant was convicted of murder in the second degree and his punishment was fixed by the jury at ten years in the penitentiary. He has appealed.
On August 9, 1915, defendant shot and killed his father, Fount Goode. Defendant's parents were married in 1887, and had seven children, most of whom were away from home. The defendant was twenty years old and married. He and his wife were living with his parents.
The evidence tends to show the following facts:
In the father's absence the mother and son cut down two plum trees in the yard near the garden. When the father came home in the evening and discovered what had been done he became angry, and dug up some rose bushes and a spirea and threw them out in the road. The mother proceeded to reset the roses, when the father picked up an ax and threatened her with it. The defendant rushed into the house and came back with a shot-gun, and demanded that his father should put down the ax. The father went into the house with the ax and soon after disappeared. He went barefoot and hatless to a neighbor's about three-fourths of a mile distant. The defendant, suspecting that his father had gone for a gun, stood on watch by a machine shed across the road from the house. About dark the father was seen coming with a shot-gun. The defendant told him to "stop." The father fired, one shot hitting defendant's leg, and another the temple, lodging near the ear. The defendant returned the shot and ran, the father pursuing him. The defendant recharged his gun with a shell as he ran and shot his father, killing him. As to the reason why he shot the last time, defendant testified:
"Well, when I turned and looked back he threw up his arms like this (indicating) to shoot again, and I turned and shot."
He further testified that his father was about thirty yards from him, and that he shot because he thought his father was raising his gun to shoot him.
There was some evidence as to previous threats by defendant against his father.
The defendant was by the State subpoenaed as a witness at the coroner's inquest. The statement made by him on that occasion, put in writing, and signed by him, was read in evidence at the trial over defendant's objection. There was evidence at the trial that the defendant was told by both the prosecuting attorney and the coroner at the inquest that he did not have to make a statement unless he wanted to do so. The evidence further showed that defendant was questioned by the prosecuting attorney while he was making such statement. He was not there told that any statement he should then make might be used against him. There was no evidence of any imposition upon the defendant, or of any improper conduct towards him by the coroner or prosecuting attorney or any one else at the inquest; nor was there any evidence tending to show that such statement of defendant was not purely voluntary on his part.
During the trial the defendant offered to prove by his mother that the deceased, about a year or a year and a half prior to his death, in a fit of passion, struck his wife, threw her on the bed, and was choking her and was pulled off by an older son, and that the defendant was present and saw it. The defendant when making said offer stated that it was for the purpose of showing that defendant had reasonable cause to apprehend that his father would do his mother some personal injury. Such offer was objected to by the State and the objection was sustained.
The court, among the instructions for the State, gave number 3, as follows:
"The defendant is a competent witness in his own behalf and his testimony should be considered by you in making your verdict, but in determining what weight you will give to his testimony you may consider the fact that he is the defendant, on trial, and testifying in his own behalf."
Instruction 4 for the State was as follows:
"If you find from the evidence in this case that the defendant willingly and voluntarily entered into the difficulty with the deceased, Fount Goode, for the purpose and with the intent of seeking an opportunity in such difficulty to kill the said Fount Goode, or do him some great bodily injury, then in such case he should not be acquitted on the ground of self-defense, however imminent his danger might afterwards have become in such difficulty."
I. There was no error in the admission in evidence of defendant's statement made at the coroner's inquest. The question of the competency of such statement was thoroughly discussed in State v. Young, 119 Mo. 495 24 S.W. 1038, where it was said (l. c. 519):...
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