State v. Hollingsworth

• Decision Date: 08 May 1900
• Citation: 156 Mo. 178,56 S.W. 1087
• Court: Missouri Supreme Court
• Parties: STATE v. HOLLINGSWORTH.

56 S.W. 1087

156 Mo. 178

STATE v. HOLLINGSWORTH.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

CRIMINAL LAW — HOMICIDE — TRIAL — INSTRUCTIONS — EVIDENCE.

1. An instruction in a criminal case that if the jury find that any statements of the defendant have been proven by the state, and not denied by the defendant, they are taken as admitted to be true, is erroneous, as equivalent to charging that defendant must specifically deny every statement attributed to him.

2. In instructing on the right of self-defense, it is defendant's right to have the jury instructed to apply the law to the facts as they appeared to defendant at the time of the killing under the then surrounding circumstances.

3. The court instructed that, to justify the killing, the defendant must be apprehensive that some great bodily harm was to fall on him, that the killing was necessary to prevent such injury, and that defendant had reasonable cause to believe, and did believe, that the deceased was to inflict some great bodily harm. Held, that the refusal of an instruction was erroneous which qualified the instruction given by stating that it was not necessary that the danger should have been actual or real, or about to fall on him, but all that was necessary was that he have reasonable cause to believe it, and did so believe.

4. Where the court, in a prosecution for homicide, instructed the jury that it must find defendant guilty beyond a reasonable doubt or acquit, an instruction as to the burden of proof should not have been given.

5. An instruction that the fact that an indictment was found by the grand jury, and the indictment itself, cannot be considered by the jury, is erroneous; and an instruction asked by the defendant, to the effect that the indictment is a mere formal charge against a defendant, and is not of itself any evidence of defendant's guilt, should have been given instead.

6. Where the evidence generally of defendant in homicide was that he shot deceased to prevent being brained, but in answer to one question he said he did not intend to "kill" deceased, and a clear case of self-defense had been made out, an instruction on manslaughter in the third degree was erroneous.

7. Statements of deceased after the shooting, in which he declined any offer of assistance from defendant, were properly rejected.

8. Evidence of threats made by deceased against defendant before the homicide was erroneously excluded, although they were to a certain extent conditional.

Appeal from criminal court, Jackson county; John W. Wofford, Judge.

Elwood Hollingsworth was convicted of manslaughter in the third degree, and appeals. From instructions given and refused by the court, and objected to by the defendant, the following, numbered 7 and 11, were given, and No. 24 refused, by the court: "No. 7. The fact that the indictment was found by the grand jury, or the indictment itself, cannot be considered by the jury in making their verdict." "No. 11. The court instructs the jury that the burden of proof is upon the state." "No. 24. The jury are instructed that the indictment in this case is of itself a mere formal accusation or charge against the defendant, and it is not of itself any evidence of defendant's guilt, and no juror should permit himself to be to any extent influenced against the defendant because or on account of the indictment in the case." Reversed.

On the 17th day of June, 1898, Elwood Hollingsworth, the defendant, was engaged in the dairy business near Kansas City. He rented the premises in which the homicide hereinafter mentioned took place from Alex. Schwab. Defendant owned the stable building, having bought it from one George Etom. His lease secured to him the privilege of removing the building at the termination of his lease. It began March 1, 1897, and ran for one year, at eight dollars per month, payable at the end of each month. At the expiration of the year this arrangement, by mutual agreement, continued, and defendant had paid for March, April, and May, 1898, and neither party had taken any steps to terminate the tenancy. Immediately west of defendant's stables Schwab, the deceased, had erected stables for his cows, being a dairyman also. While these two stables joined each other, they were separate and distinct. The defendant owned his stable, and occupied it with his cows and feed. He had no rights in Schwab's stables, and Schwab had none in his. They had separate doors and openings, with a car track elevated above the floor between them. The doors of both stables for the cattle opened on the north side of the stables. About two months after leasing to defendant, Schwab made a further lease to Etom, and desired defendant to permit Etom to occupy defendant's stables with his cows. To this defendant would not agree, but said to Schwab that, if he would refund him the two months' rent he had paid him, he would move out; that defendant and Etom could not get along in the space in defendant's stables. Schwab refused to refund, and Etom found other quarters. The evidence tended very clearly to show that this incensed Schwab towards defendant, as, by the arrangement with Etom, Schwab would have had his own stable rent free. To another dairyman, G. T. McGuire, Schwab declared his intention of putting defendant off of the premises, and "would fix him so that they would have to carry him out." McGuire warned defendant of this threat, and Schwab's animosity towards him. A short time before the homicide, Schwab also said to Hampton, the street commissioner of Rosedale, that he intended to make defendant leave the place, and, if he resisted, "he would throw him against the fence and break every bone in his body." On several occasions, when under the influence of liquor, Schwab charged defendant with having "beat him out of the Etom rent by being a d____d crank"; that he "would get even with him for it yet." On the day before the shooting, as defendant was driving home after delivering his milk, he came upon Schwab and another man in the public road. Schwab was quarreling with the man, and it culminated in Schwab jerking the man out of his wagon and giving him a beating. Defendant shouted at Schwab not to kill the man, whereat Schwab stopped long enough to turn to defendant, and say, "I'll give you some of the same medicine later on." Schwab was about 30 years old, weighed about 225 pounds, and was about six feet high. His reputation was that of a violent, high-tempered man. The defendant, Hollingsworth, was about 28 years old, and weighed 138 pounds. The evidence tended to show that he was a peaceable man and of good reputation. About 2 o'clock in the morning of June 17, 1898, the defendant went to his barn to feed and milk his cows, and Schwab's hired man, one John Kurmann, went to Schwab's barn to milk Schwab's cows. This was according to the usual custom of both. As already stated, the cow entrances to both stables were on the north of the respective stables, and each had its separate entrance. Kurmann arrived at the stables in advance of defendant. When the defendant reached his stable, he found that Kurmann, instead of admitting Schwab's cows into his stable by the north door, was bringing them in through defendant's feed room, and thence into Schwab's stables. He complained to Kurmann, and objected to his admitting the cows through that way; whereupon Kurmann replied that "it was none of his [defendant's] d____d business, and if he didn't keep his mouth shut he would throw him out of there." Defendant said nothing further just then, but went on letting in his own cows to their stalls, preparatory to milking. Several of the cows remaining in the lot, defendant started out the south way to head them off, and drive them in at the north door. On reaching the feed room he found Kurmann had again turned one of Schwab's cows into the feed room of defendant, and the cow was eating and tramping on defendant's feed, and Kurmann was standing as if waiting to see what defendant would do. Up to this point there is little discrepancy, but Kurmann and defendant differ radically as to what occurred then. Kurmann testified that defendant said, "You s____n of a b____h, I will put a hole through you;" and thereupon he left to bring Schwab down to settle the difficulty. The defendant, on the other hand, says he said to Kurmann, "I have told you once to keep the cows out of my feed; they have already done enough damage." It seems Kurmann shared the dislike of defendant which his master entertained, and, angered at the reproof of defendant, he made a rush at him, and struck at him twice, but defendant warded him off, and got away from him. Kurmann followed him, however, saying, "You d____d Americans can run over the Spanish, but you can't run over us;" alluding to the fact that he and Schwab were German Swiss. He turned suddenly and left, going towards the house, angrily threatening defendant that he was going to get Schwab, and they would throw him out of there, and "cut his d____d throat." Defendant testified that, knowing the ill will of Schwab and his temper and great strength, he became alarmed. He knew he was no match for the two, and feared that they would return, and beat, if not kill, him. The dairies were isolated, on an untraveled country road on the Kansas line. No neighbors lived near, except two shanties occupied by German Swiss, who naturally would side with his antagonists. He lived alone in a one-room shanty near the stables. He had a pistol in his house, and he concluded to go there, but after reaching the house he says he concluded they might follow him, and if they did he would be penned up, so he came out. After awhile, hearing nothing, he thought perhaps Schwab would not come down. He determined to put the pistol in his pocket, thinking he could keep them off if they assaulted him. Hearing a noise among his cows, he hurried back to his stables, fearing that a vicious cow he had was hooking the others....