State v. Heath

• Decision Date: 14 November 1911
• Citation: 237 Mo. 255,141 S.W. 26
• Parties: STATE v. HEATH.
• Court: Missouri Supreme Court

141 S.W. 26

237 Mo. 255

STATE v. HEATH.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

1. HOMICIDE (§ 113)—PROVOKING DIFFICULTY — SELF-DEFENSE — RETREAT — "WITHDRAWAL."

One provoking a difficulty may not rely on self-defense unless he in good faith withdraws therefrom, and a retreat which may be a continuance of hostilities is not sufficient, a "withdrawal" being the abandonment of the difficulty by the party provoking it, and notice of such abandonment by the other party.

2. HOMICIDE (§ 120)—SELF-DEFENSE—NECESSITY OF RETREAT.

A person free from fault when attacked by another manifestly intending to take life or do great bodily harm may pursue his assailant until he has secured himself from danger, and, if he kills his assailant in so doing, the killing is justifiable self-defense.

3. HOMICIDE (§ 113)—SELF-DEFENSE—NECESSITY OF RETREAT.

While decedent on being feloniously attacked by accused could pursue the retreating accused to make his self-defense good, accused could not during such retreat defend himself by taking decedent's life, and during the accused's retreat decedent could slay accused who, on account of his original felonious attack, could only exercise the right of withdrawal in such a way as to inform decedent of the abandonment of the difficulty.

4. CRIMINAL LAW (§ 1172)—INSTRUCTIONS— RIGHT TO COMPLAIN.

Accused may not complain of an instruction too favorable to him.

5. HOMICIDE (§ 309) — MANSLAUGHTER IN FOURTH DEGREE—INSTRUCTIONS.

An instruction that if accused intentionally killed decedent without malice, and without premeditation, and not in his necessary self-defense, and while in a violent passion suddenly aroused by reason of decedent striking him with a weapon, accused was guilty of manslaughter in the fourth degree, sufficiently charged on the issue.

6. HOMICIDE (§§ 158, 192) — THREATS—EFFECT.

Where accused made threats against decedent, such threats should be considered in determining whether accused was the aggressor, and to show his intention at the time of entering into the difficulty with decedent.

7. CRIMINAL LAW (§ 783½)—EVIDENCE—INSTRUCTIONS.

Where one of the attorneys of accused testified in the case, an instruction that "statements of counsel were not evidence, and should not be considered," was not objectionable as nullifying the testimony of the attorney, and as destroying the effect of the argument to the jury of accused's attorney.

8. CRIMINAL LAW (§ 1173)—APPEAL—HARMLESS ERROR—INSTRUCTIONS.

Where accused, charged with murder, had a wife and children, some of whom were young, the refusal to charge that the jury should not permit any sympathy for or against the prosecution or accused to influence the consideration

of the evidence, but the verdict must be based on the evidence, was not prejudicial to accused.

9. CRIMINAL LAW (§ 338)—EVIDENCE—COLLATERAL ISSUES.

On a trial for murder of a teacher by a patron of the school, evidence of the particulars of the whipping of accused's child by the teacher on the morning of the killing was properly excluded under the rule forbidding the going into a trial of collateral issues.

10. CRIMINAL LAW (§ 1169)—HARMLESS ERROR—ERRONEOUS ADMISSION OF EVIDENCE.

The error, if any, in permitting a state's witness to testify that he placed himself in the position taken by accused's witness testifying to the difficulty between accused and decedent, and that from that point the difficulty could not have been seen, was cured by the fact that the state's witness was fully cross-examined as to the point of his observation.

11. CRIMINAL LAW (§ 782)—EVIDENCE—INSTRUCTIONS.

It is not error to refuse to charge that the testimony of witnesses testifying by depositions must be considered the same as if such witnesses had been present and examined in open court.

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

Charles Heath was convicted of murder in the first degree, and he appeals. Affirmed.

This is a prosecution for murder. The defendant was convicted in August, 1907, in the Lawrence circuit court of murder in the second degree, and on appeal the judgment was reversed and remanded by this court in an opinion by Judge Fox reported in 221 Mo. 565, 121 S. W. 149. On a retrial in December, 1909, the defendant was convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for life.

A full and clear statement of the facts appearing on the first trial appears in connection with the opinion on the former appeal, and counsel for defendant here concede that it is a statement of the facts on the second trial, except in a few particulars which occurred at the second trial. There was evidence of several new witnesses tending to disprove the alleged threats of the defendant. Dr. Smiley testified that about the middle of last of February, 1907, he examined defendant, and found a clean, smooth cut three-fourths of an inch long in the top of his right ear, clear through the ear, and a bruise behind the ear below the cut, the skin being off. The defendant offered to prove by Martha McGrew that on February 21st, before the killing, in the absence of defendant, and out of his hearing, deceased at the schoolhouse punished defendant's daughter, called her a liar, that he tore her clothes, grabbed her by the sleeve, and tore her sleeve nearly out, jerked her down on one of the seats and on the stove, and whipped her, to which testimony the state objected as follows: "The state objects to the witness testifying in detail to anything that was said, done, or happened between the deceased and Lou Heath, defendant's daughter, in the absence of defendant, because any punishment or offer to punish defendant's daughter in his absence and out of his hearing would constitute no justification, defense, or excuse for defendant assaulting or killing deceased. This is a matter for the defendant to have redress in the courts of law or through the school board as provided by law. Further, the state offers no objection to the witness stating anything she may have told defendant, if she told him anything, in regard to the abuse or punishment by deceased of his daughter, and the state makes no objection to her stating the fact that he corrected or punished defendant's daughter, but the state does object to her going into detail and stating what occurred for the reasons above mentioned." The court sustained the objection on the ground that evidence as to the details of the whipping was not competent and defendant excepted, but the court allowed testimony to the fact that deceased whipped defendant's daughter in violation of his agreement with the board. Objection was made to remarks of counsel for the state in their argument to the jury, but the attention of the trial court was not called to that point in the motion for a new trial. The deposition of Dr. Williams as to the nature of the wound on the ear of defendant was read to the jury, and also the evidence of Clifford Noel, an eyewitness of the difficulty, as contained in the bill of exceptions of the former trial. The defendant testified in substance, among other things: That he first accosted the deceased. They got into a quarrel, and called each other a liar. Mosier threatened to cut defendant into shoe strings, and advanced on defendant with a knife. Defendant took a few steps, told Mosier to stop, and grabbed up two rocks. They were about 10 feet apart. Mosier picked up two rocks. Defendant threw a rock at Mosier, and Mosier threw one at defendant, who was then on east side of Crispin's gate, while Mosier was on the west side. Defendant threw another rock at Mosier, who dodged and threw another at defendant, who dodged by turning, and was struck on the top or back of the head. Mosier then made at defendant with a knife, who dodged back and ran three or four steps, then turned to Mosier, who as defendant testified, kept so close to defendant that defendant had no chance to get another rock. Defendant told Mosier to stop, and took five or six steps backward and told Mosier to "hold up there." Defendant was moving east and says that he backed up against a wire fence. The road in which they were at the time ran east and west. Mosier kept coming with the knife, and defendant took the pistol from his pocket and shot Mosier. On cross-examination defendant testified that the fight continued right along from the beginning until Mosier was shot, both busy all the time, Mosier fighting and Heath defending. Defendant read in evidence the testimony of Susie Thomas given at the preliminary examination before Charles Shira, a justice of the peace. She stated that she stood in six or eight feet of the corner of the barn, and saw Mosier with his hand up, and defendant backing. Charles Shira, the justice, was placed on the stand by the state, and the following question asked him: "You may state if you went and put yourself in the position there that Susie Thomas testified she occupied there at the northeast corner of Ferry's barn, from which she viewed the scene of this difficulty." It was objected to as follows: "We renew our objection. It is not competent to give an opinion and judgment of the result of this examination, because it is his opinion of what the testimony of Susie Thomas was." Which objection was overruled and exception taken. The witness then stated that he went to the point where she stated, about eight or ten feet from the northeast corner of the barn, and that on account of an old building, since fallen down, it was impossible to see across where the difficulty was. He was fully cross-examined as to the location of the various points in controversy.

Among the instructions given by the court of its own motion were the following:

"(9) If you believe and find from the evidence beyond a reasonable doubt that the defendant, Charles Heath, at the county of McDonald and state of Missouri, on or about the 22d day of February, 1907, intentionally shot...