State v. Hale

• Decision Date: 19 December 1911
• Citation: 141 S.W. 1125,238 Mo. 502
• Parties: STATE v. HALE.
• Court: Missouri Supreme Court

141 S.W. 1125

238 Mo. 502

STATE v. HALE.

Supreme Court of Missouri, Division No. 2.

December 19, 1911.

1. HOMICIDE (§§ 189, 192, 194) — EVIDENCE — ADMISSIBILITY.

Where accused relied on self-defense, evidence of the attitude of accused and decedent toward each other, the animus of decedent, and who was the aggressor, and what reasonable grounds, if any, accused had for believing that his life was in danger was admissible.

2. HOMICIDE (§ 189) — EVIDENCE — ADMISSIBILITY.

Where accused, relying on self-defense, proved threats by decedent, some of which had been communicated to him prior to the killing, and witnesses were permitted to testify to a prior difficulty between accused and decedent, but accused did not undertake to show any threats connected with or growing out of the prior difficulty, it was proper to exclude the details of the prior difficulty.

3. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REFUSAL TO GIVE INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse a requested charge on a subject fully and fairly covered by the charge given.

4. HOMICIDE (§300) — EVIDENCE — INSTRUCTIONS.

Where accused testified that at the time he shot decedent the latter threatened to kill him, and had his hand in his hip pocket, and stated that he came to accused's home to kill him, and intended to kill him before dark, and that accused then fired the fatal shot to save his own life, a charge that accused could lawfully return to his home after having been chased by decedent, though he might have expected an attack by decedent, was properly refused, because the question raised was not in the case.

5. HOMICIDE (§ 300) — INSTRUCTIONS — PROMINENCE TO PARTICULAR TESTIMONY.

Where evidence of uncommunicated threats by decedent against accused was admitted without objection, an instruction that the evidence should be considered in determining the intentions of decedent at the time, was properly refused, because calling attention to particular testimony.

6. HOMICIDE (§ 190) — EVIDENCE OF THREATS — ADMISSIBILITY.

Evidence of uncommunicated threats by decedent against accused is admissible only on the question whether decedent was the aggressor.

7. HOMICIDE (§ 300) — EVIDENCE — INSTRUCTIONS.

Where the issue was whether decedent was the aggressor when accused shot him, a requested charge that the evidence of uncommunicated threats by decedent against accused should be considered in determining decedent's intentions at the time he went to the home where accused lived, and where the killing occurred, was properly refused, because not properly directing the attention of the jury to the question whether decedent was the aggressor.

Appeal from Criminal Court, Greene County; Alfred Page, Judge.

Lewis Hale was convicted of murder in the second degree, and he appeals. Affirmed.

On August 4, 1909, the prosecuting attorney of Greene county filed an information in the circuit court of said county, charging the defendant with the crime of murder in the first degree. After a mistrial under said information, the state elected to prosecute for murder in the second degree. The second trial resulted in defendant's conviction of murder in the second degree, the jury assessing his punishment at 16 years in the penitentiary, which punishment was by the court reduced to 10 years in the penitentiary, and sentence pronounced accordingly.

The homicide occurred at the home of one Robert Sager, in the city of Springfield, Mo on the evening of July 17, 1909. Sager and the deceased, John Zimmerman, were brothers-in-law; their wives being sisters. In addition to the defendant, who boarded with Sager, there were in the house at the time of the homicide Mrs. Sager, Mrs. Zimmerman, and Mrs. McDowell, sisters, and Mrs. Kesterson, their mother. A few minutes before the homicide, the deceased passed by the house of A. L. Downing, who lived next door to Sager, and in response to Downing's greeting deceased said he was "wild and woolly that night," and passed into Sager's house. Shortly thereafter witness Downing saw defendant and the deceased circling around the house; the deceased apparently wanting to talk with the defendant. He then saw the deceased and two of the women enter the house at the back door; defendant following them. After defendant had entered the house, Downing heard some rough language, and heard some one say, "He calculated to kill the son of a bitch before night." Soon afterwards the witness heard a pistol shot, and saw the deceased standing on the porch in front of Sager's house, facing Sager and his wife, who were in the doorway. The witness did not see anything in the hands of the deceased. Immediately after the shooting. Mrs. Kesterson came out of the house and requested Downing to come over, saying that Zimmerman had shot himself; that "the fool had shot himself." When Downing went over, he found the deceased lying on the porch, and observed a wound in his head, about two inches above the eye. The defendant told the sheriff who arrested him that he shot the deceased, and he was also heard to say while on his way to the jail that he shot to kill. Deceased died about 30 minutes after the shooting.

The state introduced evidence showing that the defendant had purchased a revolver from a local hardware merchant at noon on the day of the shooting. At the time of his arrest, the defendant handed the sheriff his revolver, in which were four loaded cartridges and one empty cartridge.

It appears from the evidence that defendant, beginning in March previous to the homicide, boarded with the deceased; that they quarreled in May; and that defendant then went to board with the Sagers.

The evidence on the part of the defense showed, in substance, that deceased entered the house of his brother-in-law on the evening of the shooting in a partially drunken condition, and immediately began quarreling with his wife, who was lying in bed sick, and demanded that she go home with him; that he then threatened to kill the defendant before night; that, with a knife in his hand, he ran after the defendant and chased him down an alley; that he returned to the house, and again quarreled with his wife and Mrs. Sager, and threatened them with his fists; that he again threatened to kill the defendant and anybody else who might interfere with him; that he was ordered by Mrs. Sager to leave the house, whereupon he cursed her and defied her to put him out; that he stepped out on the porch, and while standing there, cursing Mrs. Sager and threatening to strike her with his fists, the defendant came up and shot him. The defendant's witnesses who saw the shooting testified that the defendant shot over the shoulder of Mrs. Sager, who was in front of him at the time, talking to the deceased. The same witnesses also testified that the deceased, at the time he was shot, did not have a knife in his hand or his hand in his pocket, but had his hands up, making gestures.

Several witnesses for the defendant testified as to...