State v. Green

• Citation: 55 S.W.2d 965
• Decision Date: 14 December 1932
• Docket Number: No. 32359.,32359.
• Parties: THE STATE v. THOMAS H. GREEN, Appellant.
• Court: United States State Supreme Court of Missouri

55 S.W.2d 965

THE STATE v. THOMAS H. GREEN, Appellant.

No. 32359.

Supreme Court of Missouri.

Division Two, December 14, 1932.

Appeal from Gentry Circuit Court. — Hon. D.D. Reeves, Judge.

REVERSED AND REMANDED.

Charles E. Gibbany and F.P. Stapleton for appellant.

(1) Instruction 7, given by the court, unreasonably restricts the right of self-defense. State v. Rennison, 306 Mo. 473; State v. Ball, 262 S.W. 1045. There was no evidence warranting the giving of Instruction 7. (2) Instruction 2, refused by the court, has been approved by our Supreme Court and properly declares the law. State v. Bartlett, 170 Mo. 668. (3) Under the facts and circumstances in this case, the deceased was killed in the progress of a fight between him and defendant. Under such facts, the court should have instructed the jury on the crime of manslaughter. State v. Rennison, 306 Mo. 473; State v. Green, 23 S.W. 87; State v. Davis, 34 S.W. (2d) 133: State v. Clough, 38 S.W. (2d) 36; State v. Burrell, 252 S.W. 709: State v. Connor, 252 S.W. 713; State v. Houston, 292 S.W. 728.

Stratton Shartel, Attorney-General, and Denton Dunn, Assistant Attorney-General for respondent.

(1) Given Instruction 7, taken together with the other instructions upon self-defense also given, does not unreasonably restrict the right of self-defense. Neither was there lack of evidence to warrant the giving of Instruction 7 in view of the evidence of defendant's threats to kill Crawford before he was evicted, and of defendant's getting his gun before going to see his landlord, and carrying it on his person to the fatal interview. State v. O'Leary, 44 S.W. (2d) 53; State v. Bundy, 44 S.W. (2d) 125; State v. Huffman, 220 S.W. 851. The instruction was broader in the appellant's citations than herein, as explained by this court in State v. Moore, 29 S.W. (2d) 150. (2) Instruction 2, asked by defendant, was properly refused as a mere abstract proposition of law in the form offered, and furthermore the principle of it was fully covered by the self-defense instructions given by the court for the defendant, designated as Nos. A, B, C, F, G, and H, to which the main given Instruction 1 referred in saying therein "unless you find the defendant acted in self-defense" as stated in the other instructions, so that to give defendant's No. 2 as asked would have been merely to emphasize a general principle of law without stating to what state of facts in the case as found by the jury it was applicable. Cases cited under Point 1, supra; State v. Murphy, 29 S.W. 144. (3) As there was evidence tending to show that the deceased committed a personal violence or battery upon defendant before the latter fired the fatal shot, we must concede that appellant's point that a manslaughter instruction should have been given is well taken, so that a reversal and remand of the case is, in our opinion, unavoidable under the recent controlling decisions of this court. State v. Creighton, 330 Mo. 1176; State v. Bongard, 51 S.W. (2d) 88.

HENWOOD, J.

An information was filed in the Circuit Court of Gentry County by which the defendant was charged with murder in the first degree. The jury found him guilty of murder in the second degree and assessed his punishment at imprisonment in the penitentiary for twelve years. He was sentenced accordingly, and in due course appealed.

Ulysses S. Crawford, the victim of the alleged murder, was shot by the defendant with a "44" revolving pistol in the town of Gentryville, in Gentry County, about 11:45 o'clock in the morning of March 2, 1931. The defendant was then eighty years of age, and Crawford was "around 70." The defendant's thumb and fingers on his left hand had been stiff and bent out of their natural shape for a long time as the result of an injury to his left wrist. Crawford was much larger than the defendant, but on account of his affliction with rheumatism did not have "good use" of his legs. The defendant was a widower, and had no near relatives except a son and four grandchildren who lived in Des Moines, Iowa. He "had a horror of being put in the county home," and resented suggestions that he should be cared for and supported by the county. For four or five years he lived alone in a shack, about two miles and a half southeast of Gentryville, on a tract of twenty-two acres of land which he rented from Crawford. He assisted in clearing the land and in building the shack and the fences around it. He subrented the pasture and the corn ground and raised potatoes, beans and pumpkins in the garden patch. In the early part of December, 1930, he had a public sale at which he sold all of his batching outfit except his bedding and a part of his furniture, and went to Des Moines to visit his son and grandchildren. He left his bedding and unsold furniture in the shack and the purchasers of his bedstead and cookstove had not removed those articles from the shack at the time he returned from Des Moines, about February 1, 1931. From that time until the day of the shooting he lived at the home of one of his neighbors, about a quarter of a mile from the shack, but slept at the shack a part of the time. While in Des Moines and immediately after his return from there he heard that Crawford had rented the twenty-two acres of land to his son. About three or four days prior to the day of the shooting, Crawford's son, then at work on the land, told the defendant that he had rented the land from his father. On the day of the shooting the defendant walked to Gentryville, carrying his pistol in a "scabbard" under his overcoat. Shortly after reaching Gentryville he met Crawford in front of a restaurant. A conversation between them ended in a fight, in the course of which the defendant drew his pistol and fired two shots, and Crawford was mortally wounded by one of the shots. Several witnesses testified that they saw the affray, but none of them testified as to what was said by the defendant or Crawford immediately prior thereto, and their testimony varies as to what occurred during the progress thereof.

Some of the State's witnesses testified that the defendant and Crawford were "quarreling," and that Crawford had his cane "up in the air" in his right hand, immediately before the fight; that they clinched and scuffled and fell; that they "got up," and the defendant "jerked back his overcoat" and drew his pistol, and Crawford grabbed him, and the defendant hit him "over the head" twice with his pistol and then fired the first shot; and that they continued to scuffle on their feet until the second shot was fired. Other witnesses for the State testified that Crawford was down on his back, and that the defendant was stooping over him, when the second shot was fired. And other witnesses for the State testified that they were still scuffling on the ground after the second shot was fired. The coroner, an osteopathic physician, testified, for the State, that he examined Crawford's body shortly after the shooting and found "a bullet hole directly over the heart, about the second intercostal space," with indications of instantaneous death from the bullet, which "looked like it ranged just a very slight but upward," and "some little scalp wounds" — cuts and bruises on the left side of the head. The State also produced witnesses who testified that, about ten days prior to the day of the shooting, the defendant said, "I heard that he (Crawford) has rented it (the twenty-two acres of land) to his boys, and if he undertakes to put me off of the place he will never live to put another man off," and, "If Mr. Crawford undertakes to put me off there (the twenty-two acres of land), he won't put nobody else off," and, "If they have got that rented (the twenty-two acres of land), they may walk in there,...