State v. Hicks

• Decision Date: 06 June 1887
• Parties: The State v. Hicks, Appellant
• Court: Missouri Supreme Court

4 S.W. 742

92 Mo. 431

The State v. Hicks, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Texas Circuit Court. -- Hon. C. C. Bland, Judge.

Affirmed.

E. A Seay and O. H. Travers for appellant.

The verdict is not sustained by the testimony, and the judgment should be reversed. Instruction number ten is clearly not the law. It assumes that defendant invited or brought on the difficulty. Defendant had a right to arm himself. The deceased had threatened him and the nature of the threats had been communicated to defendant. It is evident from the testimony that it was the intention of deceased to provoke a difficulty with defendant and there is absolutely no testimony that defendant invited the difficulty, or put himself in the way of the deceased. State v. Sloan, 47 Mo. 604. Deceased threatened to kill defendant at various times. He threatened him on the day of the killing. Defendant was aware of these threats. It was not required that defendant should wait till the deceased made an actual assault upon him. The purpose of deceased could have been ascertained by defendant from the actions of deceased, and defendant could determine the purpose of deceased by conduct falling short of personal violence. State v. Eaton, 75 Mo. 593. There was no testimony warranting the giving of instruction number five on behalf of the state. There was no basis for it. The prosecuting attorney in his argument told the jury it was intended to destroy the testimony of Hicks' bartender. State v. Palmer, 88 Mo. 568. By authority of the last cited case, instruction number four asked for by defendant, should have been given.

B. G Boone, Attorney General, and V. M. Hines for the state.

(1) The fifth instruction is as to the weight of the evidence and the credibility of witnesses, and has uniformly received the approval of this court. State v. Kelley, 73 Mo. 608; State v. McGinnis, 76 Mo. 328; State v. Wisdom, 84 Mo. 190; State v. Thomas, 78 Mo. 341; State v. Gee, 85 Mo. 647. (2) The seventh instruction for the state properly declared the law, and was applicable to this case, because defendant introduced witnesses to prove what defendant had said about the difficulty several days after its occurrence. State v. Green, 13 Mo. 392; State v. Bryant, 55 Mo. 77; State v. Ware, 62 Mo. 597; State v. Evans, 65 Mo. 579; State v. Christian, 66 Mo. 138; State v. Halcomb, 86 Mo. 378. (3) The tenth instruction covers every phase of the doctrine of self-defence applicable to this case, under the evidence, and in the same language here used, has been approved by this court. Vide instruction number seven in State v. Thomas, 78 Mo. 339. (4) The instructions asked by defendant and refused, numbered from one to eight inclusive, are, in the main, incorrect and improper declarations of law, or repetitions of instructions already given. For these reasons they were properly refused. It will appear, from an inspection of the instructions, that the law was fully and clearly declared upon every phase of the case presented by the evidence. (5) As to the alleged improper remarks of the prosecuting attorney and one John D. Young, who assisted in the prosecution, it is sufficient to say that, if error, the attention of the trial court was not called to them at the time, nor was any objection made before the filing of the motion for a new trial. It is too late to make such objections for the first time in the motion for a new trial. State v. Forsythe, 89 Mo. 667. The rule is the same in criminal as in civil cases, as to mere matters of exception. R. S., sec. 1921. To entitle defendant's complaint to a consideration he should have made and preserved objections to the remarks at the time, as well as put it in his motion for a new trial. State v. McDonald, 85 Mo. 539, and cas. cit. Besides, the remarks alleged to have been made were not such as to prejudice defendant, and even if timely exceptions had been made he would not be heard to complain. State v. Guy, 69 Mo. 430.

Norton C. J. Ray, J.; Black, J., files a separate concurring opinion; Brace and Sherwood, JJ., dissent.

OPINION

Norton, C. J.

Defendant was indicted at the May term, 1885, of the Texas county circuit court, for murder in the first degree, for killing one R. E. Barnes. After various continuances, he was put upon his trial at the July term, 1886, of said court, and convicted of murder in the second degree, and sentenced to the penitentiary for ten years. From this judgment he has appealed. No exceptions were saved either as to the reception or rejection of evidence, but a reversal is sought because of alleged errors of the court in giving and in refusing to give instructions. Of those given on behalf of the state, the following are pointed out by counsel as being objectionable, viz:

"5. The court instructs the jury that what the defendant said against himself, after the fatal act, the law presumes to be true, because said against himself, but what he said for himself, after the fatal act, in any different conversation, not proved by the state, the jury will disregard."

"7. The court instructs the jury that they are the sole judges of the weight of evidence, and the credibility of witnesses, and if you believe any witness has wilfully sworn falsely to any material matter in controversy, you should reject such false testimony, and are at liberty to disregard or reject the whole of such witness' testimony. In passing upon the testimony of any witness and the weight to be attached to his testimony, you should, in connection with all the other facts and circumstances proved, take into account the conduct and appearance of such witness upon the stand, his interest in the result of the trial, if any, the motives actuating him in testifying, the probabilities of the statements of such witness, and his inclination to speak truthfully or otherwise, as to matters within his knowledge."

"10. The court instructs the jury that the right of self-defence is a right which the law not only concedes, but guarantees to all men. If the jury, therefore, believe that, at the time the defendant shot deceased, he had reasonable cause to apprehend, on the part of the deceased, a design to do him some great personal injury, and there was reasonable cause for him to apprehend imminent danger of such design being accomplished, and to arrest such apprehended danger, he shot, and at the time he did so, he had reasonable cause to believe, and did believe, it necessary for him to use his pistol in the way he did, to protect himself from such apprehended danger, then, and in that case, the shooting was not felonious, but was justifiable, and you should acquit the defendant on the ground of necessary self-defence. It is not necessary to this defence that the danger should have been actual or real, or that it should have been impending, and immediately about to fall. All that is necessary is, that defendant had reasonable cause to believe, and did believe, these facts. However, before you acquit, on the grounds of self-defence, you ought to believe that defendant's cause for apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence, you are to determine, and unless such facts have been established by the evidence in the cause, you cannot acquit, in such case, on the ground of self-defence, even though you may believe that the defendant really thought he was in danger. On the other hand, the law does not permit a person to voluntarily seek or invite a combat, or put himself in the way of being assaulted, in order that when hard pressed he may have a pretext to take the life of his assailant. The right of self-defence does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any wilful act of his, or where he voluntarily, and of his own free will, enters into it, no matter how imminent his peril may become during the progress of the affray. The necessity, being of his own creation, shall not operate to excuse him. Nor is any one justified in using more force than is necessary to get rid of his assailant. But if he does not bring on the difficulty nor provoke it, nor voluntarily engage in it, he is not bound to flee to avoid it, but may resist, with adequate and necessary force, until he is safe. If you believe, from the evidence in this cause, that defendant voluntarily sought or invited the difficulty, in which Barnes lost his life, or that he provoked, or commenced, or brought it on, by any wilful act of his own, or that he voluntarily entered into the difficulty, of his own free will, then you are not authorized to acquit him on the grounds of self-defence. This is true, no matter how violent his passion became, or how hard soever he was pressed, or how imminent his peril became during the affray. In determining who provoked or commenced the difficulty, or made the first assault, you should...