State v. Gordon

• Decision Date: 21 November 1905
• Citation: 191 Mo. 114,89 S.W. 1025
• Parties: STATE v. GORDON.
• Court: Missouri Supreme Court

89 S.W. 1025

191 Mo. 114

STATE v. GORDON.

Supreme Court of Missouri, Division No. 2.

November 21, 1905.

1. HOMICIDE — PROVOCATION OF DIFFICULTY.

One who provokes a combat, in order to have a pretext for killing his adversary or doing him great bodily harm, is guilty of murder in the first degree if he kills his adversary during the combat, regardless of any extremity to which he may be reduced in the combat.

2. SAME.

One who provokes a difficulty without felonious intent, but intending merely an ordinary battery, and during the progress of the difficulty is compelled to take the life of his adversary in order to save his own life, is guilty of manslaughter.

3. SAME — ABANDONING DIFFICULTY.

One who, having entered into a fight without felonious intent, seeks in good faith to abandon it and withdraws as far as he can, but is still pursued by his adversary, is justified in killing his adversary, if it is necessary so to do to save his own life.

4. SAME — MANSLAUGHTER — PROVOCATION — INSULTING WORDS.

Neither words of reproach, nor contemptuous or insulting actions or gestures, unaccompanied by a personal assault or trespassing against lands or goods, constitutes sufficient provocation to reduce the killing of the person offering the provocation from murder to manslaughter; but, to have such effect, the provocation must consist of personal violence.

5. SAME — SELF-DEFENSE — FORFEITURE OF RIGHT — RESISTANCE OF ASSAULT.

One who is assaulted by another, without having either brought on or voluntarily entered into the difficulty with a view to take advantage thereof, does not forfeit his right to self-defense by voluntarily resisting the assault.

6. SAME.

Since insulting words are not provocation sufficient to justify an assault upon the person using them, the use of such words by defendant against deceased did not put defendant in the wrong in resisting an assault made upon him by deceased, and defendant had a right to voluntarily defend himself against such assault.

7. SAME — APPREHENSION OF INJURY — QUESTION FOR JURY.

On the issue of self-defense in homicide, whether defendant, who was a small, weak man, had reasonable cause to apprehend that deceased, who was a large, strong man, was about to kill him or do him some great bodily harm, held, under the evidence, a question for the jury.

8. SAME — REALITY OF DANGER.

It is not necessary, in order to entitle defendant to an acquittal of a charge of homicide on the ground of self-defense, that the danger in which defendant found himself should have been real or actual, or that such danger should have been then impending and about to fall on defendant; but it is only necessary that defendant should have had reasonable cause to apprehend immediate danger of a design to commit a felony, or to do defendant great bodily harm.

9. CRIMINAL LAW — APPEAL — REVIEW OF FACTS.

It is only in case of a flagrant abuse of discretion that the Supreme Court will interfere with a ruling of the trial court denying a new trial in a criminal case on the ground of the incompetency of certain jurors, where such ruling involves the determination of a question of fact.

Appeal from Circuit Court, Boone County; Alex. H. Waller, Judge.

Fleetwood Gordon was convicted of manslaughter in the fourth degree, and appeals. Reversed.

O. Guitar, S. Turner, J. L. Stephens, J. C. Gillespy, E. W. Hinton, and W. M. Williams, for appellant. The Attorney General and John Kennish, for the State.

GANTT, J.

On the 18th day of October, 1902, the grand jury of Boone county, Mo., at the October term of the circuit court, returned an indictment against the defendant, charging him with murder in the first degree of Hugo G. Doelling on the 8th day of July, 1902. The defendant was duly arraigned upon said indictment and entered his plea of not guilty thereto. At the February term, 1904, the defendant was put upon his trial before a jury, and was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the state penitentiary for a term of two years. Motions for new trial and in arrest of judgment were filed in due time, heard, and overruled, and exceptions saved, and from the judgment and sentence, the defendant appealed to this court.

The evidence on behalf of the state tended to prove the following facts: On the 8th day of July, 1902, Hugo G. Doelling was the proprietor of and conducted a restaurant in the city of Columbia, Boone county, Mo. He was living with his wife and child in rooms immediately above the restaurant, and had lived in the city about one year. The defendant was an attorney at law residing and practicing at said city. An account against Doelling amounting to about $40 had been placed in the hands of the defendant for collection. It appears that the deceased had been slow in the payment of this bill, and the defendant, in the discharge of his duty to his client, had visited Doelling several times prior to the 8th of July, 1902, to collect the same. On the 8th of July, defendant's client, who owned the account, had called at defendant's office during his absence and requested defendant's father to ask the defendant to call at his hotel at the noon hour to see him in regard to this account. When the defendant received this information, he took the account and started to the hotel. He went first to the restaurant of Doelling, and went in to see Doelling about it. Several people were in the restaurant at the time, eating dinner. Doelling was busy in the dining room, and when the defendant entered the front room of the restaurant Doelling came from the dining room to meet the defendant in the front room. It appears that Mrs. Doelling was near where they met. According to the dying declaration of the deceased, when the deceased approached the defendant, the defendant presented him the account and said, "What are you going to do about this bill?" and the deceased said, "Wait, come in after dinner," and the defendant said, "You son of a bitch, I won't do it; I will not wait," to which Doelling replied, "How dare you come into my house and call me such names?" To which defendant replied, "You son of a bitch, I will kill you besides." At this point the deceased in his dying declaration says, when he said this, "I struck him with my fist, and he then pulled his knife and cut me." Mrs. Doelling did not remember seeing her husband strike him, but says that immediately after the hot words passed between them they were in a scuffle, before she realized anything. The conversation between the deceased and the defendant was in such low tones that none of the persons who were taking their dinner at the time observed that any difficulty existed between the parties at all, until their attention was directed by the scuffle between the defendant and the deceased, and none of them testified as to who began the difficulty. After they had scuffled a few seconds, Doelling put his hand on his side, and said, "He has stabbed me," and ran out of the door crying "Murder!" Doelling then ran to the corner of the block, and then out diagonally into the middle of the street. As Doelling and the defendant separated in the restaurant, the defendant was seen holding a knife in his hand. Some of the witnesses called it a dagger. Some called it a "spring button knife." One witness said the blade was about five inches long. As Doelling went up the street the defendant followed, and when Doelling went out into the middle of the street the defendant continued straight ahead and went to his room. The evidence on behalf of the defendant tends to show that the deceased felt unkindly towards him because he had insisted on his paying the account. It was in evidence that the deceased upon one occasion, speaking of the defendant, said, "If that G____ d____ red-headed Fleet Gordon comes back here bothering me about that thing any more, I will break his neck and stamp him through the floor." The defendant testified that, when he went into the deceased's place of business, the deceased approached him and in an angry voice asked him what he wanted there, and that defendant replied politely that he had come again to see about the payment of that account, and the deceased requested him to call later in the evening; that thereupon the defendant told him that he had held this account for quite a while, and had frequently been disappointed in the promises of the deceased, and was tired fooling with him, and that thereupon, without more, the deceased struck him a heavy blow in the temple; that the blow dazed and staggered the defendant, and thereupon the deceased grabbed the defendant with his left arm around his head, pressed the defendant to his body, and began choking him; and that while in this position the defendant pulled his knife out of his pocket and cut the deceased, in order to liberate himself and prevent the deceased from inflicting great bodily harm upon him. After going into the street Doelling was assisted upstairs to his rooms, and the surgical examination revealed that he had received three stab wounds: One on the left shoulder, commencing at the spine and running toward the neck; a second one, about three inches from the spine, between the ninth and tenth ribs, about an inch long. This second wound went straight in about two and a half inches, cutting the intercostal artery and penetrating the lung. The third wound was between the eight and ninth ribs, about two and a half inches deep, and cutting into the loop of the intestines. These wounds were fatal, and Doelling died that night about half past 10 o'clock. The evidence also discloses that the deceased (Doelling) was a large, athletic, and powerful man, weighing according to the different judgments of the witnesses from 165 to 175 pounds, and that the defendant (Gordon) is physically small, much under the average of strength and power.

The court instructed the jury on murder in the first degree and second degree and...