State v. Horn

• Citation: 103 S.W. 69,204 Mo. 528
• Parties: STATE v. HORN.
• Decision Date: 11 June 1907
• Court: United States State Supreme Court of Missouri

103 S.W. 69

204 Mo. 528

STATE v. HORN.

Supreme Court of Missouri, Division No. 2,

June 11, 1907.

1. HOMICIDE — EVIDENCE — DYING DECLARATIONS.

On a prosecution for murder, statements of deceased that a certain person had requested him to arrest defendant, who was drunk and crazy and had run his family out of the house, and that deceased had shot defendant in self-defense, such statements constituting a part of a dying declaration, were incompetent.

2. SAME—INSTRUCTIONS.

On a prosecution for murder, it appeared that deceased, who was a constable, was requested to call at the home of defendant and take charge of the defendant; deceased's informant stating that defendant was intoxicated. That when deceased arrived at defendant's home defendant requested him to leave, but that he failed to do so, and shooting ensued between the parties. It was conceded that deceased's visit was not in his official capacity, and the court instructed that if defendant without just cause was attempting to assault deceased, who had good reason to believe that defendant was about to do him great harm, deceased, either as an individual or an officer, had a right to defend himself, and did not have to leave the premises, provided he peaceably entered upon the premises. Held, that the instruction was erroneous, in that it singled out particular acts on the part of deceased and gave them undue prominence; that it ignored defendant's right to request deceased to leave his premises; and under other general instructions in the case it was the province of the jury to fully consider decedent's acts and conduct, and determine whether or not such acts and conduct were of such a character as afforded any justification on the part of the defendant to take his life.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

George Horn was convicted of murder in the first degree, and he appeals. Reversed.

This cause is brought to this court by appeal on the part of the defendant from a judgment of the circuit court of St. Francois county, convicting him of murder of the first degree. The conviction and judgment in this case rests upon an amended information filed by the prosecuting attorney of St. Francois county, which was duly verified. Omitting formal parts, it was as follows: "Now at this day comes George M. Wilson, prosecuting attorney within and for the county of St. Francois and state of Missouri, leave of court having been first had and obtained, and files this, his first amended information. Now at this day comes George M. Wilson, prosecuting attorney within and for the county of St. Francois and state of Missouri, upon his oath of office, and upon his knowledge, information and belief, and informs the court that George Horn, late of the county aforesaid and state aforesaid, on the 4th day of September, A. D. 1905, at and in the county of St. Francois and state of Missouri, with force and arms, in and upon one James Francis Burns, in the peace of the state, then and there being, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, did make an assault; and that the said George Horn, with a certain dangerous and deadly weapon, to wit, a revolving pistol, then and there loaded with gunpowder and leaden balls, which he, the said George Horn, in his hand then and there had and held at and against him, the said James Francis Burns, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought did shoot off, discharge and with the revolving pistol aforesaid, and with the gunpowder and leaden balls aforesaid, then and there feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did shoot, strike, penetrate and wound him the said James Francis Burns, in and upon the body of him, the said James Francis Burns, then and there with the dangerous and deadly weapon, to wit, the revolving pistol aforesaid and the gunpowder aforesaid and the leaden balls aforesaid, giving to him, the said James Francis Burns, in and upon the body of him, the said James Francis Burns, one mortal wound, of which said mortal wound aforesaid he, the said James Francis Burns, from the 4th day of September, A. D. 1905, until the 23d day of September, A. D. 1905, in the county of St. Francois and state of Missouri, and the city of St. Louis and state of Missouri, did languish and languishing did live, on which said 23d day of September, A. D. 1905, in the city of St. Louis, and state of Missouri, of the mortal wound aforesaid, then and there did die. And so George M. Wilson, prosecuting attorney aforesaid, on behalf of the county and state aforesaid, upon his oath of office aforesaid, and upon his knowledge, information and belief, aforesaid, does inform the court that the said George Horn, him the said James Francis Burns, in the county of St. Francois and state of Missouri, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose and of his malice aforethought, did kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state." To this information there was a plea of not guilty, and the defendant at the May term, 1906, was put upon his trial. We shall not undertake to detail all of the evidence developed at the trial of this cause. It is sufficient, in order to enable us to determine the legal propositions presented, to indicate what the testimony developed at the trial tended to prove.

The testimony on the part of the state tended to show that on the afternoon of September 4, 1905, there was a picnic at Elvins, about one mile from Flat River, and that Francis Burns was at the picnic, and that witness Carl Norwine told the deceased, who was constable of St. Francois township, that defendant's wife, Mrs. George Horn, wanted him to come over to the house and take charge of George and take him to Farmington until he got sober. After having this conversation with Norwine, the deceased went to Mr. Medlock's house, the son-in-law of the defendant, and Medlock accompanied the deceased over to the house of the defendant. On arriving at the house of the defendant, the deceased and Medlock found the defendant sitting on a couch in the front room conversing with a neighbor, Mrs. L. A. Hunt. The defendant at that time was quiet and conducting himself properly. Mrs. Hunt testified that she arrived at Mrs. Horn's home about 3 p. m., September 4, 1905; that she found Mr. Horn sitting or lying on the sofa in the front room, and while she was talking to him Mr. Burns, the deceased, and Mr. Medlock came in, and they were received in a friendly way. Mrs. Hunt further testified as follows: "I asked Mr. Burns why he had not united with our church during that conversation, and he said `I don't know,' was the words, I believe, and he said he `wasn't quite satisfied on the communion question'; made that remark. I looked around, and there was a Bible lying on the table, and I says: `Here is a Bible. Let us read something about it.' During the conversation Mr. Horn left the room and came back while we were talking about the meeting, and when he came back Mr. Medlock says, `I will go after the ladies,' and I says, `No, don't go; I am going home.' He got up and left the room and that left Mr. Horn, Mr. Burns, and myself, and I was looking at the Scriptures. Q. You were reading the Scriptures. Did you read it there? A. No, sir; I didn't read it. I was looking for the Scriptures and while Mr. Medlock was gone Mr. Horn and Mr. Burns got up and left the room. Q. What door did they get out of? A. Went out of the room door that goes into the hall. Q. Do you know who went out first? A. No, sir; I couldn't tell you which one went out first because I was looking at the book, and didn't think about them, and wasn't paying any attention to what they was saying or the conversation between them. Q. Did you hear any conversation about going out? A. I didn't catch the words. I heard nothing about what they were saying to each other. I didn't catch any of the words at all. Q. Did you hear any suggestion in the room? A. No, sir; I didn't. Q. Then what transpired, Mrs. Hunt? A. While they was gone out a short time I had looked over my Bible. I had found the chapter—eleventh chapter, First Corinthians—and had the Bible in my lap, and I heard talking out of doors, and I got up and stepped into the hall, and I looked out of the front door that fronts on Taylor avenue, and I saw Mr. Horn standing not far from the corner of the porch. Q. Yes, sir? A. He was standing with his hand dropped down and a revolver in his hand. Q. Where was Burns, if you saw him? A. I didn't see him after he left the room."

Mrs. Victoria Bennett, a witness for the state, testified substantially as follows: "Well, I heard Mr. Burns say that he come there to make peace, and didn't come to have any trouble; that he come to make peace. `Let's settle this business now.' Horn told him: `It is settled. I wish you would get out of here.' Burns kept talking kind and coming to him—wanted to `settle this matter and make peace.' Mr. Horn kept telling him it was already settled, for him to get out, to go outside. He kept backing off from him, and Mr. Burns kept crowding up to Mr. Horn, and he kept backing off, and he kept backing down—backing down until he got to the front gate. When he (Horn) got to the front gate, it looked to me like he come around to the front side of the house, and Mr. Horn swore for him to get outside or he would kill him. I saw Horn with a gun in his hand, and Burns says, `If that is the case, I have got one too,' and he took a pistol out of his pocket, and drawed a pistol at each other, and Mr. Burns looked like he got kinda mad, and they got to talking, and they dropped their pistols down to the side, and I didn't see any pistol for a while. Directly they raised their...