State v. Heath

• Decision Date: 29 June 1909
• Citation: 121 S.W. 149,221 Mo. 565
• Parties: STATE v. HEATH.
• Court: Missouri Supreme Court

121 S.W. 149

221 Mo. 565

STATE v. HEATH.

Supreme Court of Missouri, Division No. 2.

June 29, 1909.

1. INDICTMENT AND INFORMATION (§ 189) — OFFENSES INCLUDED IN CHARGE — DEGREES OF HOMICIDE.

An information, charging murder in the first degree, embraces all the lower grades of the offense.

2. INDICTMENT AND INFORMATION (§ 47) — ALLEGATIONS — SUFFICIENCY.

An information charging murder in the first degree need not allege that accused had been afforded a preliminary examination prior to the filing of the information; the statute as to a preliminary examination going merely to the regularity of the preliminary proceedings.

3. HOMICIDE (§ 307) — GRADES OF OFFENSE — EVIDENCE — INSTRUCTIONS.

The court, in a homicide case, must submit the grades of the offense as shown by the testimony of the state and by the testimony of accused, though the testimony of the accused is uncorroborated.

4. HOMICIDE (§ 45) — MANSLAUGHTER — PROVOCATION.

The common-law rule that words of reproach, however grievous, or contemptuous or insulting actions, without any assault on the person, or any trespassing against lands or goods, do not reduce the killing to manslaughter, but that the provocation must consist of personal violence is the law of Missouri.

5. HOMICIDE (§ 309) — MANSLAUGHTER — PROVOCATION.

Where the provocation consists of an assault or personal violence sufficient to arouse the heat of passion necessary to reduce the killing to manslaughter, the issue of manslaughter in the fourth degree must be submitted to the jury.

6. HOMICIDE (§ 271) — MANSLAUGHTER — PROVOCATION.

Whether an assault aroused the heat of passion necessary to reduce the killing to manslaughter is for the jury.

7. HOMICIDE (§ 113) — SELF-DEFENSE.

One voluntarily engaging as the aggressor in a difficulty with another may in good faith withdraw therefrom; and, where he does so, and the latter pursues him, he may defend himself and use necessary force, though he entered into the difficulty with the felonious intent to do the latter some bodily harm.

8. HOMICIDE (§ 300) — SELF-DEFENSE — INSTRUCTIONS.

To warrant the court in giving an instruction on the right of accused, on withdrawing in good faith from a difficulty voluntarily entered into, to defend himself, there should be some substantial testimony showing that accused, after the commencement of the difficulty, in good faith sought to withdraw from it.

9. HOMICIDE (§ 300) — INSTRUCTIONS — ARGUMENTATIVE INSTRUCTIONS.

An instruction, on a trial for murder of a teacher by a patron of the school, that accused could go on the public road and invite a conversation with decedent, and ask the reason for his conduct toward a child of accused, and that if he did so, and decedent displayed a knife and threatened accused, who had good reason to believe, and did believe, that decedent was about to carry out such threat, accused could use all reasonable means to protect himself, etc., was properly refused, because it commented on isolated facts and was argumentative.

10. HOMICIDE (§ 160) — EVIDENCE — ADMISSIBILITY.

Accused may show, in explanation of his possession of the pistol with which he killed decedent, that he had previously been threatened with great personal violence, but he cannot show the details of the threat, especially where the state did not contradict the testimony of accused that his life had been threatened.

11. HOMICIDE (§ 286) — EVIDENCE — INSTRUCTIONS.

Where accused showed, in explanation of his possession of the pistol with which he killed decedent, that he had been previously threatened with personal violence, the court need not charge on the right of accused to bear arms in necessary defense of his person, for the issue was whether he used the pistol at the time of the killing without any lawful provocation, or on a reasonable apprehension of danger to protect himself, or in a sudden heat of passion aroused by a lawful provocation.

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

An instruction, on a trial for the murder of a teacher by a patron of the school, that accused, having a child at the school, could inquire of decedent as to a difficulty between decedent and the child, and to bring the matter to the attention of the directors of the school for their action, and to seek to have the punishment of the child controlled by the directors, and that if accused did so in a peaceable manner, he acted within his rights without prejudice to his right of self-defense, was properly refused because argumentative.

13. WITNESSES (§ 398) — IMPEACHMENT — FOUNDATION.

Witnesses, testifying to threats made by accused against decedent, cannot, in the absence of the laying of a proper foundation, be impeached by proof that they made the threats sworn to as having been made by accused.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Charles Heath was convicted of murder in the second degree, and he appeals. Reversed and remanded.

This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Lawrence county, Mo., convicting him of murder of the second degree. On the 5th day of August, 1907, the prosecuting attorney of McDonald county filed in the circuit court of that county an information, duly verified, charging the defendant with the murder of Clarence Mosier, which information, omitting formal parts, was as follows: "Joseph S. Long, prosecuting attorney within and for the county of McDonald and state of Missouri, under his oath of office, and on his knowledge, information, and belief, informs the court that one Charles Heath, at the county of McDonald and state of Missouri, on the 22d day of February, 1907, in and upon one Clarence Mosier, then and there being, feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought did make an assault, and with a dangerous and deadly weapon, to wit, a pistol, loaded then and there with powder and leaden balls, which he, the said Charles Heath, in his right hand then and there had and held at and against him, the said Clarence Mosier, on purpose and of his malice aforethought, did shoot off and discharge, and with the pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought, did shoot, strike, and penetrate and wound him, the said Clarence Mosier, to wit, in the front part of the body of him, the said Clarence Mosier, giving to him, the said Clarence Mosier, at the said county of McDonald and state of Missouri, on the 22d day of February, A. D. 1907, with the dangerous and deadly weapon, to wit, the pistol aforesaid, in and upon the front part of the body of him, the said Clarence Mosier, one mortal wound, of the width of about one inch and of the depth of about three inches, of which said mortal wound he, the said Clarence Mosier, of the county of McDonald and state of Missouri, on the said 22d day of February, 1907, then and there of the mortal wound aforesaid, instantly died, and so the said Joseph S. Long, prosecuting attorney within and for McDonald county, state of Missouri, aforesaid, under his oath of office and upon his knowledge, information, and belief, does say that he, the said Charles Heath, him, the said Clarence Mosier, in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought, at the said county of McDonald and state of Missouri, on the 22d day of February, A. D. 1907, did kill and murder against the peace and dignity of the state." To this information, on August 8, 1907, the defendant entered a plea of not guilty, and on the same day he filed an application for a change of venue from McDonald county, alleging bias and prejudice on the part of the inhabitants. On August 14th said application for a change of venue was taken up, and by the court granted, and the cause ordered transferred to Lawrence county. Defendant duly entered into a recognizance for his appearance in said county to which said cause had been transferred, and the cause, in conformity to the order, was transferred to the Lawrence county circuit court, and all proceedings certified to that court. Subsequently, on November 26th, the trial of said cause was begun. A jury was duly impaneled and sworn to try the cause, and the trial was proceeded with.

There is but little dispute as to what the respective witnesses testified to upon the trial of this cause; in fact learned counsel for appellant in their oral argument practically conceded that the learned Attorney General had made a reasonably fair statement of the facts as shown by the record disclosing the evidence. Therefore we shall be content with making a brief statement of the facts which the testimony tended to show on the part of the state, as well as the facts the evidence tended to establish on the part of the defendant.

On the part of the state the testimony introduced substantially tended to prove that the deceased, Clarence Mosier, was teaching the Saratoga public school, and had been so engaged for about seven weeks preceding the tragedy. Defendant was a patron of this school, having in attendance thereat several children, among whom was a daughter named Lou, of about 16 years of age, and a son named John. On February 21st said Lou Heath violated one of the rules of the school, and Mosier attempted to administer punishment by whipping her. She resisted his efforts, and during the encounter that followed she struck him over the head with an iron poker, and thereupon left the school-room and went to her home. That evening defendant went to the home of Mr. Crispin, who together with Mr. Rorark and Mr. Orff composed the board of directors for that district. While there he stated that the teacher had sent his daughter Lou home from school, and would not let her return, and he wanted Mr. Crispin to see about the...