State v. Lewis

• Citation: 248 Mo. 498,154 S.W. 716
• Parties: STATE v. LEWIS.
• Decision Date: 12 March 1913
• Court: United States State Supreme Court of Missouri

154 S.W. 716

248 Mo. 498

STATE v. LEWIS.

Supreme Court of Missouri, Division No. 2.

March 12, 1913.

1. CRIMINAL LAW (§ 1172) — APPEAL — HARMLESS ERROR — INSTRUCTIONS.

Upon conviction of murder in the second degree, error in an instruction on murder in the first degree becomes immaterial.

2. HOMICIDE (§ 308) — INSTRUCTIONS — MURDER IN SECOND DEGREE.

The elements of murder in the second degree, including malice, being inconsistent with and necessarily exclusive of the theory of self-defense, it was not error to fail to refer to self-defense in an instruction fully covering the crime of murder in the second degree.

3. HOMICIDE (§ 230) — SUFFICIENCY OF EVIDENCE — INTENTIONAL OR VOLUNTARY KILLING.

Evidence in a trial for murder held to show that the killing was intentional or voluntary.

4. HOMICIDE (§ 33) — MANSLAUGHTER — "VOLUNTARY MANSLAUGHTER."

"Voluntary manslaughter," as embraced in Rev. St. 1909, § 4468, defining manslaughter in the fourth degree as every other killing of a human being by the act or culpable negligence of another which would be manslaughter at common law, and which is not justifiable, is the intentional killing of a human being in the heat of passion or on a reasonable provocation, without malice or premeditation, and under circumstances not rendering the homicide justifiable.

For other definitions, see Words and Phrases, vol. 8, pp. 7350-7351.]

5. HOMICIDE (§ 309) — INSTRUCTIONS — COMBINING DEGREES OF MANSLAUGHTER.

An instruction blending the definitions of manslaughter in the fourth degree, defined by Rev. St. 1909, § 4467, as the involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any cases other than justifiable homicide, and by section 4468 as every other killing of a human being by the act or culpable negligence of another which would be manslaughter at common law, and which is not justifiable, is erroneous.

6. HOMICIDE (§ 309) — INSTRUCTIONS — COMBINING SECOND AND FOURTH DEGREE MANSLAUGHTER.

Rev. St. 1909, § 4460, defines manslaughter in the second degree as the killing of a human being without a design to effect death, but in a cruel or unusual manner; and section 4467 defines manslaughter in the fourth degree as an involuntary killing by a weapon, or by means neither cruel nor unusual. In a trial for murder, where the evidence tended only to prove voluntary manslaughter in the fourth degree, an instruction that required the jury to find that the killing was not done in a cruel or unusual manner, before they could find defendant guilty of manslaughter in the fourth degree, was erroneous, in that it destroyed the otherwise correct definition of manslaughter in the fourth degree, and left the case much in the same situation as if there had been no instruction on manslaughter in the fourth degree.

7. CRIMINAL LAW (§ 1172) — TRIAL — INSTRUCTION WITHOUT BASIS OF FACT.

An instruction as to the weight to be given to statements by defendant in his own favor, and also to those against his interest, having no basis in fact, is not reversible error, where it can be seen from the facts and circumstances in evidence that it was not prejudicial.

8. CRIMINAL LAW (§ 786) — INSTRUCTIONS — CREDIBILITY OF STATEMENTS BY ACCUSED.

An instruction in a trial for murder, stating the law as to weighing the testimony of accused, and also the law as to the weight to be given any extrajudicial statements proved to have been made by accused on the issues in controversy, tended to mislead the jury into believing that the rule as to his statements referred also to his testimony.

9. HOMICIDE (§ 300) — INSTRUCTIONS — SELF-DEFENSE.

In a trial for murder, where the evidence showed a voluntary killing or manslaughter in the fourth degree, the court should instruct on self-defense that, if defendant at the time he shot had reasonable cause to believe, and did believe, that it was necessary for him to use his pistol in the way he did to protect himself from such apprehended danger, he should be acquitted on the ground of self-defense, although such shooting resulted in the death of the deceased.

Appeal from Circuit Court, Washington County; E. M. Dearing, Judge.

Walter Lewis was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Defendant, under an information charging him with murder in the first degree for shooting to death with a pistol one James Edsell on August 6, 1911, was, at the March term, 1912, of the circuit court of Washington county, convicted of murder in the second degree and his punishment fixed at 25 years in the penitentiary. He appeals from the judgment.

The substantive facts brought out by the state's evidence are about as follows: The shooting occurred between 7 and 8 o'clock p. m. on Sunday, August 6, 1911, near the east front of the Providence Baptist Church house, a short distance from Richwoods, near the north line of Washington county, Mo. On this Sunday evening the people of the neighborhood were gathering there to attend church services. Prior to the arrival there of either the deceased or the defendant, a quarrel and fight had occurred on the church grounds between Jim Lewis, a brother of defendant, and one Billy Patton. The boys had been separated and the trouble just about concluded when the deceased arrived at the church. Deceased, who was an official of the church, had heard the noise of the fight while on his way to the church, and upon his arrival inquired into the trouble and told the boys that they would have to stop fussing. He was standing on a little porch or platform in front of the church door when the defendant's brother, who had participated in the fight, came near him, and said that he felt like he had been run over, and that he had always behaved himself. To this deceased made reply, "Yes, you always behave yourself;" and further said, "I feel like I have been run over, too." Just at this time defendant arrived, accompanied by Miss Laura Palmer, a neighborhood girl whom he was escorting to church. Several people had congregated in front of the church by this time, and defendant and Miss Palmer passed up through the crowd, stopping within three or four feet of the platform on which deceased was standing. Rev. Brown, who had been in the church building, stepped to the door and said to deceased, "Brother Edsell, we had better go in and have church," and deceased replied: "I don't believe we can have any church now. It looks like they have come here for trouble, and we had just as well pair out and give it to them." Defendant then said: "I think you have said enough; I can attend to you in a minute." Some of the evidence for the state is to the effect that, when deceased told the boys they would have to stop fussing, defendant stepped up and said, "Stop it then." Immediately after defendant had so spoken, deceased stepped off the platform, which was but two steps from the ground, and struck the defendant under the left eye with his fist. The blow staggered the defendant. Some witnesses testified that it staggered him backwards a distance of 8 or 10 feet, others that it knocked him down, and others that the blow did not knock him entirely down. Immediately after the blow was struck, a pistol was fired; the ball striking Miss Palmer on the right side. One witness for the state testified that the shot was fired by defendant. A crowd gathered around the Palmer girl, who had fallen, and the fight between deceased and defendant was temporarily suspended; the defendant going some 25 or 30 feet north and east and around a tree standing to the northeast of the church house, and coming back in front of the building, with a pistol in his hand, and down to where the crowd was gathered about the Palmer girl, and close to where deceased was standing in a stooping position, looking at the wounded girl. Here the deceased saw the defendant, straightened up, and began striking at him; the defendant retreating, and deceased following and attempting to strike or get hold of the defendant. Deceased caught the defendant after going about 30 or 40 feet, and at this point, while they were scuffling and fighting, defendant held his pistol against the body of the deceased and fired two shots in rapid succession; one bullet penetrating the small intestines, and the other following the course of a rib on one side of the body. Thereupon deceased released his hold of defendant, and the defendant ran, going in the southeasterly direction, towards his home. Deceased's shirt was on fire from the fire of the pistol. He brushed the fire out, walked into the church building, and said, "Boys, they have got me." He then became sick, and lay down on the floor, and a doctor was summoned. He was removed later to his home, a short distance away, in Franklin county, and died the following Tuesday morning as the result of the shooting.

The Palmer girl was removed to the home of a neighbor. One witness for the state testifies that about midnight, the night of the shooting, defendant came to the house where the Palmer girl was and went up to her bedside, and said, "Laura, I shot you and killed you;" the girl replying that he did not do it on purpose, and that she was not dead yet.

Dr. Foard testified for the state that he had attended both of the wounded on the night of the shooting, and that the wounds of both were caused by the same sized bullets. This witness also...