State v. Hopper

• Decision Date: 01 February 1898
• Parties: STATE v. HOPPER.
• Court: Missouri Supreme Court

44 S.W. 272

142 Mo. 478

STATE v. HOPPER.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

HOMICIDE — EVIDENCE — MUTUAL COMBAT — SELF-DEFENSE.

1. A conviction will be reversed, where defendant was not arraigned.

2. On a prosecution of H. for murder committed during a fight with deceased, it was error to exclude evidence of threats by deceased against "the H. boys," made a few minutes before the difficulty, where defendant claimed that deceased was the aggressor, the vagueness of the threats being a matter for the jury.

3. It was error to charge that flight raises the presumption of guilt, where the only evidence on which to base it was that defendant fled from the place where the homicide was committed, immediately thereafter, to his home, not more than half a mile distant.

4. The court charged that if deceased and defendant had a fight which resulted in deceased's death, and defendant commenced the fight or brought it on by his willful and unlawful act, or if he voluntarily entered into the fight, then there was no self-defense in the case, and that it made no difference how imminent the peril in which defendant was placed. Held, the charge should have been modified so as to read, "or if he entered into the difficulty for the purpose of wreaking his malice, or for the purpose of taking advantage of deceased, and of taking his life or doing him some great bodily harm," then there was no self-defense.

Appeal from circuit court, McDonald county; J. C. Lamson, Judge.

Thomas Hopper was convicted of manslaughter, and appeals. Reversed.

Hugh Dabbs and Jas. A. Sturges, for appellant. Edward C. Crow, Atty. Gen., and Sam. B. Jeffries, Asst. Atty. Gen., for the State.

BURGESS, J.

From a conviction of manslaughter in the fourth degree at the August term, 1897, of the McDonald circuit court, and the fixing his punishment at two years' imprisonment in the penitentiary, under an indictment theretofore preferred against him by the grand jury of said county, for having on the ____ of August, 1896, at said county, shot and killed one Jack Tillotson with a pistol, defendant appeals. The difficulty occurred at a school house called the "Loomis School House" one night during a protracted meeting which was being conducted there. It appears that the evening next preceding the night upon which the difficulty occurred the defendant and two or three companions passed along the road near by the house where deceased then lived, and that some of the party hallooed at him, and also used some profane language towards him. The killing occurred outdoors, after dark, near the school house, but in the light reflected from the lamps in the house, so that by reason of the light those who witnessed the conflict were enabled to see what took place between the parties. It appeared from the evidence on the part of the state that the beginning of the difficulty was that deceased started towards defendant, and remarked that he would whip the damned son of a bitch for the way he cursed him and abused him the night before; that Hopper said a word or two in reply, and turned and hit him with his fist in the face; that deceased then hit defendant in the face one lick with his fist; that Hopper then commenced kicking Tillotson, when the latter hit him one or two more licks, then grabbed up a little stick, and hit him on the thigh, when Hopper jumped up, and fired the fatal shot at him. Defendant testified that deceased approached him, and, while doing so, remarked, "I suppose you are the damned son of a bitch that was in the crowd hallooing at me last night;" and that he said, "Yes; I was in the crowd, but I didn't do any hallooing." Defendant then replied, "I can whip the damned son of a bitch that hallooed;" and that he (defendant) shoved him back, when deceased struck him in the breast with a knife, inflicting a wound on his breast bone three or four inches long, and a quarter of an inch in depth; also a wound in each hand, and one upon his thigh. That deceased then knocked him down with a stick of wood, and that he fell on some wood. That he then threw his arm on his gun, and that deceased struck him in the back with another stick, when he (defendant) shot him. That he then went home, and was confined to his bed for about eight weeks. Dr. St. John, a witness for defendant, testified that he was called to attend defendant professionally, and upon examination he found the wounds upon the...