State v. Harper

• Decision Date: 09 May 1899
• Parties: STATE v. HARPER.
• Court: Missouri Supreme Court

51 S.W. 89

149 Mo. 514

STATE v. HARPER.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

HOMICIDE — MANSLAUGHTER — TRIAL — INSTRUCTIONS — EVIDENCE.

1. Under Rev. St. 1889, § 3470, defining manslaughter in the second degree as the unnecessary killing of another, "either while resisting an attempt by such other person to commit any felony, or do any other unlawful act after such attempt shall have failed," an instruction that, if such killing was done by the defendant while deceased was attempting to commit a felony upon and against the father of the defendant, he is guilty of manslaughter in the second degree, unless it is further found that such killing was necessarily done in order to prevent the deceased from committing such felony, and was also done under such circumstances as would have justified the father of the defendant himself in shooting deceased, is erroneous.

2. Evidence that, while defendant's father and deceased were engaged in a quarrel, defendant, coming from a distance, saw deceased about to strike his father, a man 75 years old, with a fence rail, with a friend of deceased standing near with an ax, he shot and killed deceased in order to prevent injury to his father, is insufficient to sustain an instruction for manslaughter in the second degree.

3. Upon evidence that defendant took the life of one who was in the act of striking his father with a fence rail, without knowing the cause of the difficulty, or who began it, an instruction that if the father began the quarrel, but the taking of the life of deceased was necessary to save the father's life or to prevent great bodily harm, defendant was guilty of manslaughter in the fourth degree, is erroneous; it being necessary only that defendant should have good reason to believe, and did believe, that he was justified in using such force to save his father from impending peril.

4. There is no error in refusing an instruction covered by those already given.

Appeal from circuit court, Dunklin county; J. L. Firt, Judge.

Jid Harper was convicted of manslaughter in the second degree, and appeals. Reversed.

Ely & Kelso and J. L. Downing, for appellant. The Attorney General, for the State.

BURGESS, J.

At the July term, 1898, of the circuit court of Dunklin county, the defendant was convicted of manslaughter in the second degree, and his punishment fixed at five years' imprisonment in the penitentiary, under an indictment theretofore preferred by a grand jury of said county charging him with having at said county, on the 6th day of April, 1897, shot and killed one Thomas Oden. After unsuccessful motions for new trial and in arrest, defendant appeals.

The homicide was committed on the 6th day of April, 1897, in Dunklin county. At that time Thomas Oden, Charles Hall, the defendant, and his father, Starling Harper, all lived in the same neighborhood; Oden's home being about three-quarters of a mile from Harper's, but at the time stated Oden was staying at his mother's, who lived about two miles from Harper's. On the day before the difficulty, deceased, Charles Hall, and Louis Hall, his father, and another man called by the witnesses "Indian Doctor," on their road home from the town of Campbell, in said county, arranged to send a challenge to the Harpers to meet them the following Saturday on halfway ground, and they would "do them up"; the deceased agreeing to carry the challenge. On the morning of the difficulty, deceased, Charles Hall, and a boy by name of David Ramsey, went from the house of deceased to the house of Charles Hall, about two miles distant, for the purpose of carrying some provisions and a man and his wife to Hall's house. There were two roads leading from the house of deceased to Hall's, — one a direct route; the other not so direct, leading by Harper's, and something near three-quarters of a mile further. The road last named runs through the Starling Harper farm, and was opened by him for his own convenience. In going to Hall's house from Oden's on this occasion, the parties took the direct route, but returned by the road leading by Harper's house, which is fenced upon both sides for about 300 yards. In passing through the lane, they overtook Starling Harper, who was in the road, walking in the same direction that they were going. When they overtook Harper, he and Oden began quarreling, during which Harper said to him, "You are following that damned bacon thief around, are you?" Whereupon Oden invited him to go with him off of his (Harper's) premises, and settle the matter. Harper, although near 75 years of age, accepted the challenge, and when the parties reached the end of the lane they stopped. Oden then got off of the wagon on which he, Hall, and Ramsey had been riding, and took from a fence near by a rail, and, while Harper was striking at him with a hoe which he had in his hands, he struck Harper on the head or shoulder with the rail. Defendant, who was at work in a field near by, hearing the parties quarreling, started to the assistance of his father, Starling Harper, and while on the way was handed a loaded shotgun by his mother. When he got within about 25 feet of the combatants, deceased was in the act of striking Old Man Harper the second time with the rail, when Harper observed defendant, and told him to shoot; whereupon defendant said to Oden, "I am going to shoot you," and fired at him, the load entering the left side, from the effects of which he died on the same day. In the meantime Charles Hall had also gotten off of the wagon, and was standing near by with an ax in his hand, and defendant turned the gun upon him, but did not shoot. Oden struck Starling Harper one blow with the rail after the shot was fired. He was not knocked down, however, during the encounter.

At the close of the testimony the court gave the jury, over the objection of defendant, the following instructions, at the request of and on behalf of the state:

"The indictment in this cause was filed on the 16th day of July, 1897, and charges the defendant with murder in the first degree. According to the evidence adduced, however, it will be necessary for you to determine, in case you find the defendant guilty of any offense, whether the conviction should be for the specific offense charged, or for murder in the second degree, or manslaughter in the second degree, or for manslaughter in the fourth degree.

"Murder in the first degree is the killing of a human being willfully, deliberately, premeditately, and with malice aforethought. Murder in the second degree has all of the elements of murder in the first degree, excepting that of deliberation.

"Manslaughter in the second degree, for the purpose of this trial, is the killing of a human being unnecessarily, while resisting an attempt by such human being to commit a felony.

"Manslaughter in the fourth degree, for the purpose of this trial, will be explained in a subsequent instruction applied to this case.

"As used in defining murder, `willful' means `intentional,' as contradistinguished from `accidental.' `Deliberately' means, for the purpose of this trial, in a cool state of the blood; that is, not in a heat of passion caused by some just provocation to passion. `Premeditately' means thought of beforehand any length of time, however short. `Malice' does not mean spite or ill will, but signifies an unlawful state of mind; such a state of mind as one is in when he intentionally does an unlawful act. `Malice aforethought' means malice with premeditation; that is, that the unlawful act intentionally done was determined upon before it was executed.

"Bearing the foregoing in view, and considering it as a basis, the court submits to you the further instructions following:

"(1) If you should believe and find from the evidence that, at the county of Dunklin and state of Missouri, any time prior to the day on which the indictment was filed, the defendant, Jid Harper, in the manner and by the means specified in the indictment, shot and wounded the deceased, Thomas Oden, and shall further believe that such shooting was done willfully, deliberately, premeditately, and with malice aforethought, and shall further believe that on the same day the said Thomas Oden died, at the said county of Dunklin, in consequence of such shooting and wounding done by the defendant, you will find the defendant guilty of murder in the first degree.

"(2) If you shall find from the evidence that, within the time and at the place specified in the preceding instruction, the defendant, in the manner and by the means specified in the indictment, shot and wounded the deceased, Thomas Oden, and shall further believe such shooting and wounding was done willfully, premeditately, and with malice aforethought, but without deliberation, and shall further find and believe that on the said day of the said shooting the deceased died from the effects of such shooting and wounding, at the county of Dunklin and state of Missouri, you will find the defendant guilty of murder in the second degree.

"(3) If you shall find and believe from the evidence that, at the county of Dunklin and state of Missouri, any time within three years prior to the day on which the indictment was filed in this cause, the defendant shot and wounded the deceased, Thomas Oden, and that the said Thomas Oden died on the same day from the effects of such shooting and wounding, at the said county and state, and shall further find and believe from the testimony that such shooting was done by the defendant while said deceased was attempting to commit a felony upon and against the father of the said defendant, you will find the defendant guilty of manslaughter in the second degree, unless you further find and believe from the testimony that such shooting and wounding by the defendant was necessarily done; that is, unless...