State v. Linney

• Decision Date: 28 February 1873
• Parties: STATE OF MISSOURI, Respondent, v. THOMAS LINNEY, Appellant.
• Court: Missouri Supreme Court

52 Mo. 40

STATE OF MISSOURI, Respondent,

v.THOMAS LINNEY, Appellant.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Livingston Circuit Court.

J. E. Wait, for Appellant.

I. The Law of Self Defense necessarily includes the right of attack, and the 5th instruction given for the State is erroneous. (State of Mo. vs. Sloan, 47 Mo., 604; see page 613; Rosc. Crim. Ev., cited and approved; Wharton's Crim., Law, 5th Rev. Ed., §§ 1026, 1027; State vs. Scott, 17 Mo. 521.)

II. The sixth instruction given for the State is erroneous. It is founded upon § 11, page 447, 1st Wagner Statutes, and fails to assign what would constitute a cruel and unusual manner, or to set forth any hypothesis of facts proven, which would guide the jury in determining what would be killing in a cruel and unusual manner. (See State vs. Pugh, 15 Mo., 509.) It is also misleading.

III. The Court erred in limiting the time of Counsel. This, in a Criminal Case, is in conflict with our Bill of Rights. (§ 18, Art., 1, Const. of Mo., Commonwealth vs. Word, 3 Leigh, 758.)

James Shields, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

We have scarcely ever examined a record of this length where the appellant had so little ground for reasonable complaint. The first objection relied on, that the court erred in excluding a part of the conversation of a witness when it had admitted the balance, is not good. The question propounded to the witness in his cross-examination, and the testimony sought to be elicited, related to an entirely different transaction from what he had been previously testifying to, had no necessary connection or congruity with it, and was not a part of the same conversation.

There is nothing in the point that the Court permitted the State to introduce additional evidence after the defendant had closed his case. The defendant was again allowed to introduce evidence in rebuttal, and the order and manner of introducing testimony is always a matter largely resting in the discretion of the Court.

The instructions, which are numerous, taken as a whole, constitute a fair presentation of the law. The fifth given for the prosecution is the most strenuously opposed in this court, and that told the jury that the right of self defense does not include the right of attack, and that a party who seeks and brings on a difficulty cannot avail himself of the doctrine of self defense in order to shield himself from the consequences of killing his adversary, however imminent the danger in which he may have found himself in the progress of the affray. Nor in such case would the father be justified in killing the adversary of the son, provided the son had provoked and brought on the conflict in which the son was so placed in imminent danger during the progress thereof; provided always that the father knew that his son had sought or brought on the difficulty.

There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack, and then claim exemption from the consequences of killing his adversary on the ground of self defense. While a man...