State v. Hicks

• Decision Date: 09 December 1903
• Citation: 77 S.W. 539,178 Mo. 433
• Parties: STATE v. HICKS.
• Court: Missouri Supreme Court

77 S.W. 539

178 Mo. 433

STATE v. HICKS.

Supreme Court of Missouri. Division No. 2.

December 9, 1903.

MURDER—INSTRUCTIONS—HARMLESS ERROR— APPEAL—ASSIGNMENTS OF ERROR—BILL OF EXCEPTIONS — INFORMATION — SUFFICIENCY —VERIFICATION.

1. In a prosecution for murder, in which the evidence showed that defendant shot deceased either from ambush, or immediately upon being seen by deceased, an instruction that if defendant armed himself, and sought deceased with the former felonious intention of killing him, or sought or brought on, or voluntarily entered into, a difficulty with the deceased, with the felonious intention to kill, then defendant could not invoke the law of self-defense, was not erroneous, for failure to charge that, if defendant entered into the difficulty without the intent to kill, he would only be guilty of manslaughter in the fourth degree, inasmuch as there was no evidence of any difficulty, so as to require such charge.

2. In a prosecution for murder, an instruction on the law of self-defense, when the evidence was insufficient to raise such issue, was harmless to defendant.

3. In a prosecution for murder, in which defendant claimed that he shot deceased because the latter had seduced defendant's sister, an instruction that, though the jury might believe that the deceased had done so, this would not justify the defendant in lying in wait to shoot deceased, was correct.

4. It is not error to refuse requested instructions sufficiently covered by those given.

5. On appeal in a criminal case, an assignment that the court erred in permitting the introduction in evidence of an affidavit filed by defendant for a continuance cannot be considered when not incorporated in the bill of exceptions.

6. An assignment of error on appeal in a criminal case that the court erred in permitting an affidavit to be introduced by the state cannot be considered where the record does not show that it was so introduced.

7. Under Laws 1901, pp. 138, 139, requiring an information to be signed by the prosecuting attorney, and verified by his oath, or by the oath of some person competent to testify as a witness in the case, an information signed by the prosecuting attorney, and in which the clerk of the court certifies that the prosecuting attorney makes oath that the facts stated are true, is a substantial compliance with the statute.

Appeal from Circuit Court, Douglas County; Asbury Burkhead, Judge.

Columbus Hicks was convicted of murder, and appeals. Affirmed.

Boone & Orr, L. O. Neider, and Thos. H. Musick, for appellant. Edward C. Crow and C. D. Corum, for the State.

BURGESS, J.

From a conviction of murder in the second degree, and the assessment of his punishment at 10 years' imprisonment in the penitentiary, under an information filed by the prosecuting attorney of Douglas county in the office of the clerk of the circuit court of said county, charging the defendant, Columbus Hicks, with having at said county, on the 1st day of December, 1901, shot to death with a rifle gun one Hesz Clay, defendant appeals.

At the time of the homicide, and for many months prior thereto, the deceased and defendant's sister Christeeny Hicks were engaged to be married, and were to have been married on the 25th day of December, 1901. He was very attentive to her, and she spent most of her time with him. The defendant and his father and mother were opposed to the attentions of deceased towards the young lady, and had ordered him to remain elsewhere than at their home. Matters grew more unpleasant as time passed, and the daughter was compelled to leave the home and seek an abiding place wheresoever she might. The bitterness of feeling between the deceased and defendant did not wane, but grew more intense; and they each began to threaten the life of the other. The evidence shows that on the day of the tragedy the deceased and a friend of his, by the name of Goss, passed by the home of defendant, and were observed to pass by him; that a short time before defendant's sister had left home, with the avowed intention of going to a neighbor's. She had not been gone but a short while, when the deceased came along in company with his friend, Goss. They soon came up with the sister of the defendant—whether by previous appointment or not, does not appear. They began to talk with her. Goss soon moved apart, some 20 yards from the deceased, and deceased sat upon the fence. Goss and the defendant's sister both testify that, while the deceased and she stood talking on the public highway, he was shot by some one in ambush. Their testimony is that the deceased was doing nothing more than talking with the girl at the time he was shot, and, on account of the dense woods skirting the roadside, they were unable to discover the identity of the assassin. The deceased was shot with a Winchester rifle, and expired almost immediately. On behalf of the defendant, the evidence tends to show that the deceased was criminally intimate with defendant's sister; that he on one occasion remained all night at the home of the defendant, and occupied the same bed with her; that the defendant's father urged the defendant to either marry his daughter, or else remain apart from her; but that deceased continued his attentions, and persisted in the liaison. Defendant testified that the deceased, at the moment he was killed, was in the act of copulation with defendant's sister, and that the deceased, being discovered by defendant, placed his hand behind him, as if to draw a pistol, whereupon he was killed by defendant; but this was denied by both the sister and Goss, the only witnesses to the occurrence. It is admitted that the deceased was killed early in the afternoon upon a public thoroughfare, and that he and the young lady were standing in full view of Goss. Besides, from the affidavit for a continuance filed by defendant, it appears that he thought he could prove by an absent witness that he was at the residence of the witness at the time the deceased was shot.

The court, over the objection and exception of defendant, gave a large number of instructions, but only the following are complained of:

"(21) The law of self-defense does not imply the right to attack. If you believe from the evidence that the defendant armed himself with a deadly weapon, and sought the deceased with the former felonious intent of killing deceased, or sought or brought on or voluntarily entered into a difficulty with deceased with the felonious intention to kill deceased, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed.

"(22) The court instructs the jury that if you believe from the evidence that the defendant shot and killed deceased because of the alleged attempt of said deceased to draw a weapon on defendant, and not because he saw the deceased in the act of sexual intercourse with his sister, then you will not consider such act of sexual intercourse, if they were in such act, or the previous sexual relations of deceased and Tennie Hicks, if such relations existed, but you will confine yourself to the question whether the defendant shot in the necessary defense of his person as the law of self-defense is herein defined.

"(23) Although the jury may believe from the evidence that the deceased and Tennie Hicks were criminally intimate, this would not, in law, justify or excuse the defendant in lying in wait to shoot and kill deceased, if you believe from the evidence he did so lie in wait. So if the jury believe from the evidence that the defendant followed the deceased, and shot him from ambush, feloniously, premeditated, and with his malice aforethought, as the terms are in these instructions defined, then the criminal relation between said deceased and Tennie Hicks, if it did exist, and if it were known to defendant, does not reduce the killing below murder in the second degree, and affords no justification or mitigation for the shooting, if done under such circumstances."

The defendant asked the court to instruct the jury as follows:

"(1) The law accepts human nature as God has made it, or as it manifests itself in the ordinary man, and, in every sort of conduct in others which usually excites the passions of the mass of men so as to...