State v. Hickam

• Decision Date: 21 May 1888
• Citation: 8 S.W. 252,95 Mo. 322
• Parties: STATE v. HICKAM et al.
• Court: Missouri Supreme Court

8 S.W. 252

95 Mo. 322

STATE v. HICKAM et al.

Supreme Court of Missouri.

May 21, 1888.

1. HOMICIDE — ASSAULT WITH INTENT TO KILL — INSTRUCTIONS — FORCE NECESSARY TO REPEL ASSAULTS.

A person assaulted cannot stop to estimate just how much force is necessary to repel the assailant. Hence it is error to charge, in a trial for assault with intent to

kill, that if the defendant believed, and had good cause to believe, that the complaining witness was about to do him some great bodily harm, that would not justify him in using greater force than was necessary to repel such assault.¹

2. SAME — ASSAULT WITH INTENT TO KILL — INSTRUCTIONS.

In a trial for assault with intent to kill, it is error to charge that if the jury find that defendant made the assault with a pistol, in the manner charged in the indictment, it devolves on him to show some grounds for making such assault, and, if he has not done so, they must find him guilty, as such charge throws on defendant the burden of proving his innocence, and submits to the jury a question of law as to what facts would justify the assault.

3. SAME — ASSAULT WITH INTENT TO KILL — INSTRUCTIONS — FAILURE TO COVER WHOLE CASE.

In a trial for assault with intent to kill, which was claimed to have been done in self-defense, a charge, purporting to cover the whole case, which does not instruct the jury that they must be satisfied beyond a reasonable doubt that it was not done in self-defense before they can convict, is defective.

4. SAME — ASSAULT WITH INTENT TO KILL — DEFENSE OF NEAR RELATIONS.

Where a person, finding his mother and sister engaged in an altercation with other persons, goes to their assistance, and, during the affray, shoots one of such others, his guilt depends on the motive prompting the act, and the circumstances under which it was done, and not on the fact that he voluntarily engaged in the difficulty.

5. SAME — ASSAULT WITH INTENT TO KILL — ACCESSORIES.

Where persons are indicted as accessories to an assault with intent to kill, they cannot be convicted, unless there was a common purpose in the minds of the principal and the defendants to kill, and the assault was done in the attempt to accomplish such common purpose, or that the assault was made by the principal with an intent in his mind to kill, of which the defendants had knowledge, and they did some act in furtherance of the attempted accomplishment of such purpose.

6. TRIAL — INSTRUCTIONS — VERACITY OF WITNESS.

Where there is a direct conflict of testimony, it is not error to instruct a jury that, if they believe from the evidence that a witness has knowingly testified to a falsehood, they are at liberty to disregard his entire testimony.

Appeal from circuit court, Moniteau county; E. I. EDWARDS, Judge.

Draffen & Williams, for appellants.

The fifth instruction given by the court was error, because it declared that he must prove his innocence to the satisfaction of the jury, when it was for the state to prove it beyond a reasonable doubt. Chaffee v. U. S., 18 Wall. 516-545; State v. Fowler, 52 Iowa, 103, 2 N. W. Rep. 983; People v. Coughlin, 32 N. W. Rep. 905; Nichols v. Winfrey, 79 Mo. 544; Jones v. State, 13 Tex. App. 1; State v. Wingo, 66 Mo. 181; Dubose v. State, 10 Tex. App. 230; Stokes v. People, 53 N. Y. 164; Com. v. McKie, 1 Gray, 61; State v. Porter, 34 Iowa, 139. In addition to the error as to the burden of proof, this instruction told the jury that defendant Samuel Hickam must "show some satisfactory ground" for making the assault, leaving it to the jury to determine what constituted a "satisfactory ground." What facts would constitute a defense — would amount to a "satisfactory ground" — was a question of law for the court; the existence thereof, a question of fact for the jury. It was error to leave it to the jury to decide whether there were "satisfactory grounds" for the assault, without telling them what facts would in law constitute such grounds. Rains v. Railway Co., 71 Mo. 164-169; Anderson v. McPike, 86 Mo. 293-299; State v. Ellis, 74 Mo. 207-219; Morgan v. Durfee, 69 Mo. 469. "An instruction in itself erroneous cannot be cured by another." If this instruction is vicious, in that it erroneously puts the burden of proof upon the defendant, and also submits a question of law to the jury, it cannot avail the state that other instructions, which were correct, were given. It cannot be known by which the jury were governed. Goetz v. Railroad Co., 50 Mo. 472; State v. Simms, 68 Mo. 305; Manufacturing Co. v. Hudson, 4 Mo. App. 145; State v. Foley, 12 Mo. App. 431; State v. McNally, 87 Mo. 644. The court committed error in giving the fourth instruction asked by the state. It improperly told the jury, in the first paragraph, that defendant Samuel Hickam was not justified in using any greater amount of force than was necessary to repel the attack made upon him. Nichols v. Winfrey, 79 Mo. 544, (see that part of opinion on page 546, point 2;) State v. Palmer, 88 Mo. 568; State v. Sloan, 47 Mo. 604; Runyan v. State, 57 Ind. 80. The eighth instruction given for the state was erroneous. It purported to cover the whole case; and if it authorized the jury to convict the defendant, without requiring them to find the existence of all the constituent elements of the offense, it was error, even though other correct instructions were given. State v. Mitchell, 64 Mo. 191; State v. Dearing, 65 Mo. 530. This instruction told the jury that they might find the defendant Samuel Hickam guilty of the offense defined in section 1262, without requiring them to find that the assault was committed with malice aforethought. The jury might have believed all that this instruction required them to find, and yet said defendant Samuel Hickam would not have been guilty of the offense specified in section 1262. The instruction left out the feature distinguishing assaults provided for by section 1262 from those included in section 1263, and yet authorized the jury to find said defendant guilty under section 1262, and to administer the punishment for the offense provided for in said section. The defendant could not have been guilty of the offense mentioned in section 1262 unless the assault was made with malice aforethought; i. e., with malice and premeditation. The instruction omitted an important element. State v. Curtis, 70 Mo. 594, 598; State v. Seward, 42 Mo. 206; State v. Sands, 77 Mo. 118; State v. McNally, 87 Mo. 644. Again, it left the jury to grope in the dark as to what would constitute "sufficient reason, cause, or extenuation." State v. Ellis, 74 Mo. 207-219; Morgan v. Durfee, 69 Mo. 469; Rains v. Railway Co., 71 Mo. 164, 169. The instruction was so worded as to mislead the jury. In a similar case, this court, through NAPTON, J., said, in regard to a similar instruction: "But the instruction in reference to the intent of the defendant was calculated to mislead. The intent of the defendant in making the assault was a question of fact for the jury. The law raises no presumption about it, and it was error to tell the jury that `the law presumes that every man intends the natural, necessary, and probable consequences of his acts.'" State v. Stewart, 29 Mo. 419. The ninth instruction was in conflict with the third instruction given for defendants. See, also, State v. Partlow, 90 Mo. 608, 4 S. W. Rep. 14. The tenth instruction for the state ought not to have been given. It was directed against the defendant Samuel Hickam, and prejudiced the jury against him. Such an instruction should not be given in ordinary jury trials simply because of a conflict in the testimony. White v. Maxcy, 64 Mo. 559; Bank v. Murdock, 62 Mo. 70; State v. Palmer, 88 Mo. 568.

B. G. Boone, Atty. Gen., for respondent.

The eighth instruction is as to the legal presumptions arising from the use of a deadly weapon. State v. Wisdom, 84 Mo. 188; State v. Dickson, 78 Mo. 440; State v. Thomas, Id. 337; State v. Curtis, 70 Mo. 594. The tenth tells the jury that, if any witness has knowingly testified falsely, they will disregard such witness' testimony. This instruction was proper, and there was sufficient basis for it being given. State v. Palmer, 88 Mo. 572, and cases cited.

BRACE, J.

The defendants were jointly indicted under section 1263, Rev. St. 1879, for assaulting and shooting one Harrison Davenport, "on purpose and with malice aforethought," with the intent him, the said Davenport, to kill; the defendant Samuel Hickam as principal, and the other defendants as present, aiding, helping, abetting, etc., the said Samuel in the felony and assault as aforesaid. They were all found guilty under section 1263, supra; the punishment of Samuel Hickam assessed at five years' imprisonment in the penitentiary; of the other defendants, at fines in different amounts. The defendant Susan is the mother, and defendant Nancy Lamm is the sister, of said Samuel, and defendant Edi Bell was a colored servant of the said Susan. As ground for reversal of the judgment in this case, it is urged that the trial court committed error in giving for the state instructions 4, 5, 8, 9, and 10, which are as follows: "No. 4. The court instructs the jury that, even though the defendant Samuel Hickam may have had good reason to believe, and did believe, that the witness Harrison Davenport was about to do him some great bodily harm, yet that would not justify him in using any greater amount of force than was necessary to repel such attack as said Hickam apprehended was about to be made upon him; and if the jury shall find that the defendant Samuel Hickam did shoot said Davenport, and wound and disable him in such a manner that said Davenport could not make any further attack or resistance, and that the said defendant Samuel Hickam, knowing him to be so wounded and disabled, did continue to assault him, then such assault, made after said Davenport was so wounded and disabled, was not made in necessary self-defense. No. 5. If the jury shall believe from the evidence...