State v. Higgerson

• Decision Date: 26 June 1900
• Citation: 57 S.W. 1014,157 Mo. 395
• Parties: STATE v. HIGGERSON.
• Court: Missouri Supreme Court

57 S.W. 1014

157 Mo. 395

STATE v. HIGGERSON.

Supreme Court of Missouri, Division No. 2.

June 26, 1900.

ASSAULT WITH INTENT TO KILL — RIGHT OF SELF-DEFENSE — INSTRUCTIONS TO JURY.

1. On a trial for assault with intent to kill, an instruction that if the prosecuting witness, upon the provocation of words only, assaulted defendant, and was about to do him great bodily harm, then said witness was the aggressor, "unless defendant voluntarily brought on a difficulty with said witness," and defendant had the right to defend himself by the use of such force as was necessary to prevent great personal injury, is erroneous, since upon the facts assumed defendant had the right to defend himself, and the instruction denies him that right "if he brought on a difficulty with the witness."

2. An instruction, on a trial for assault with intent to kill, that if, when the prosecuting witness "came out of the store, defendant began to curse and abuse him; that he was gesticulating and motioning with his left hand, and that his right hand was in his pocket; and that as soon as the witness appeared defendant approached him in an angry and threatening manner, — then the witness had the right to get a stick of wood or any other weapon, and use the same in the defense of his person," — is objectionable as being a comment upon the evidence.

3. Defendant awaited the approach of the prosecuting witness on the highway, and commenced a quarrel with him, and subsequently, as the latter was coming out of the post office, defendant walked towards him, gesticulating and swearing. The witness then ran to his wagon, and, seizing two pieces of stove wood, threw one at defendant. Thereupon the witness and defendant made a rush at each other, and, while each was held back by others, defendant got near enough to the witness to cut his clothing with his pocketknife. Held, that it was error to refuse to instruct, as requested by defendant, that the prosecuting witness had no right to assault defendant because of the latter's abusive language, and that if the witness made the first assault, and defendant believed he was about to do him great bodily harm, then the defendant had the right to protect himself by the use of such force as might be necessary, and if he so acted in self-defense they should find him not guilty.

4. The defendant having made his assault with a deadly weapon, it was not error to refuse to instruct the jury on the law of common assault.

Appeal from circuit court, Cooper county; T. B. Robinson, Judge.

Columbus C. Higgerson was indicted for the crime of assault with intent to kill, and from a judgment of conviction he appeals. Reversed.

W. G. & G. T. Pendleton, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, for the State.

GANTT, P. J.

The defendant was indicted in the circuit court of Cooper county for assault with malice aforethought to kill Thomas A. Harris. He was duly arraigned, tried, and convicted of a felonious assault without malice aforethought, and his punishment assessed by a fine of $383. From that conviction he appeals.

The evidence tended to prove these facts: All the parties lived in the neighborhood of Lamine station, in Cooper county. On the day of the difficulty the defendant had been to Booneville on business, and returned to Lamine on the afternoon train. About the time he alighted from the train the prosecuting witness and his brother Sterling Harris crossed the track near the station, and went to a wood yard near by and got a load of stove wood. After loading their wagon, they went back across the track to the business portion of the village, Thomas Harris riding and driving, and Sterling following walking behind and near the wagon. Defendant after his arrival started away from the station, and then returned, he says to see about paying the freight on some timothy seed. On the part of the state the testimony tended to prove that the defendant saw Thomas and Sterling Harris as they went for the wood, and walked back and forth from the station to Swiggli's store, north of the track, with his right hand in his overcoat pocket, and one witness testified she saw him take his knife out of his pants' pocket, and then replace it in the same pocket. As Thomas and Sterling Harris returned with the wood, they passed the defendant, on the opposite side of the street from him, whereupon the defendant called to Sterling Harris to come over, that he wanted to see him; to which Sterling replied, according to the state's evidence, that he did not have time; that he did not want to see him, but if he wanted to see him to come over to his side of the street. Defendant went over, and when he came to Sterling the latter told him he could talk to Tom, and left, and went into the post office. Some say he told defendant to go to hell. The state's witnesses say defendant cursed both Tom and Sterling Harris. After Sterling went into the post office, Thomas also went in. In a few moments Thomas came out, and as defendant was walking towards him, gesticulating and swearing, Thomas ran to his wagon, and, seizing two pieces of the stove wood, threw one at defendant. According to some of the evidence, the stick struck defendant on the side of the head, making a gash, while others testified it did not hit him at all. When the stick was thrown, Thomas Harris and defendant each made a rush at the other, but defendant's son caught Thomas Harris and held him, and Sterling Harris caught defendant, but defendant got close enough to cut at Thomas Harris,...