State v. Little

• Decision Date: 26 May 1910
• Citation: 228 Mo. 273,128 S.W. 971
• Parties: STATE v. LITTLE.
• Court: Missouri Supreme Court

128 S.W. 971

228 Mo. 273

STATE v. LITTLE.

Supreme Court of Missouri. Division No. 2.

May 26, 1910.

1. HOMICIDE (§ 127)—INFORMATION—SUFFICIENCY.

An information for murder held to sufficiently allege with what the assault was made,

and that the mortal wound was feloniously given.

2. CRIMINAL LAW (§ 1050)—APPEAL—EXCEPTIONS—NECESSITY.

Any error in overruling a plea of abatement to an information on the ground of penddency of an indictment for the same offense under Rev. St. 1899, § 2476 (Ann. St. 1906, p. 1486), providing that the mode of procedure first instituted by indictment and information shall be pursued to the exclusion of the other, is waived by failure to save exceptions at the term of court at which the ruling was made.

3. CRIMINAL Law (§ 1090)—APPEAL—RECORD —SCOPE AND CONTENTS.

Exceptions to the ruling of a plea of abatement to an information on the ground of pendency of an indictment for the same offense can be preserved only by a bill for that purpose and will not be considered where found only in the record proper.

4. CRIMINAL LAW (§ 736)—EVIDENCE—DECLARATIONS OF CONSPIRATORS—DETERMINATION OF ADMISSIBILITY.

In a prosecution for murder, evidence held insufficient to authorize the submission to the jury of the question whether there was a conspiracy between defendant and others, as affecting the question whether the evidence of declarations of the others should be considered by the jury.

5. CRIMINAL LAW (§ 368)—EVIDENCE—DECLARATIONS—RES GESTÆ.

The admission of evidence of a statement by a third person to a witness, in the absence of defendant, that defendant had it in for deceased was error; the statement being no part of the res gestæ.

6. CRIMINAL LAW (§ 673)—INSTRUCTIONS— EVIDENCE.

Where statements of a third person in the absence of defendant in a murder case were admitted on the theory of conspiracy between defendant and the person making the statements, but the state failed to prove a conspiracy, the court should instruct the jury to disregard the evidence.

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

Where there was no evidence as to defendant's purpose in borrowing a pistol prior to an encounter with deceased, except his own, to the effect that the feared injury at the hands of others than the deceased, and wanted the pistol for protection, and it is not shown that defendant knew that deceased was in the town, but it was shown that between the original difficulty brought on by defendant and a second conflict, when the killing occurred, a certain time elapsed during which defendant had withdrawn from the conflict, an instruction that if defendant borrowed a revolver with the intention of killing deceased, and, in pursuance of his purpose, provoked and entered into a difficulty with deceased and assaulted him, there is no self-defense, was not warranted.

8. HOMICIDE (§ 121)—JUSTIFICATION—SELF-DEFENSE.

Where, after defendant assaulted deceased, deceased left the place and defendant abandoned the conflict, on the return of deceased, and the re-opening of the conflict by him, defendant had the right of self-defense, regardless of whether sufficient time had elapsed since the first conflict for the mind of deceased to have cooled, or whether he was still in a passion.

9. HOMICIDE (§ 79)—MANSLAUGHTER—FOURTH DEGREE.

Where defendant, without intending to kill deceased, assaulted him and aroused a violent passion in the mind of deceased, who went away from the place and soon afterwards returned with a revolver and attacked defendant, who shot and killed deceased to save his own life, defendant was not guilty of manslaughter in the fourth degree, though sufficient time had not elapsed between the two conflicts for the passion of deceased to cool.

10. HOMICIDE (§ 340)—APPEAL—HARMLESS ERROR—INSTRUCTIONS.

Where the evidence required an instruction on fourth-degree manslaughter, error in such an instruction was prejudicial, though defendant was tried and convicted of second-degree murder.

11. CRIMINAL LAW (§ 823)—TRIAL—INSTRUCTION—CURE BY OTHER INSTRUCTIONS.

An erroneous instruction as to manslaughter in the fourth degree was not cured by a correct instruction on the same offense.

12. CRIMINAL LAW (§ 830)—INSTRUCTIONS— REQUESTS—EFFECT OF ERRONEOUS REQUEST.

In a prosecution for murder, where defendant requested an instruction as to defendant's right of self-defense after he and deceased had voluntarily abandoned a previous difficulty, and deceased had returned and renewed it, though the instruction was objectionable in form, being sufficient to call the court's attention to the theory it presented, the court should have given a correct instruction on the subject.

Appeal from Circuit Court, Pemiscot County; J. L. Fort, Judge.

Albert Little was convicted of murder in the second degree, and he appeals. Reversed and remanded.

On the 14th day of September, 1908, the prosecuting attorney of Pemiscot county filed in the circuit court of said county an information charging the defendant with murder in the first degree. Thereafter, upon the defendant's application, the regular judge of the circuit court was disqualified, and the Honorable J. L. Fort, judge of the Twenty-Second judicial circuit, was selected to try the case. Thereafter the state waived the charge of murder in the first degree, and elected to try the defendant on the charge of murder in the second degree. Upon trial had, the defendant was found guilty of murder in the second degree, the jury assessing his punishment at 10 years in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and overruled. Judgment was entered in accordance with the verdict, from which judgment defendant prosecutes his appeal to this court.

The testimony on the part of the state tends to prove that at about 7:30 or 8:00 o'clock, on the evening of March 2, 1908, the deceased, Edward Langdon, in company with Clay Pillow, Elmer Sanders, and Ed. Mode, was in a saloon, known as the "Opera saloon," in the town of Caruthersville, Pemiscot county, Mo., and that said Clay Pillow, who was intoxicated, was giving expression to an unfriendly feeling towards one Jerry McElvain, not then present. Soon thereafter, McElvain, one Vaughn, and the defendant entered the saloon. McElvain stepped to the bar, borrowed $2 from the bartender, and invited those present to join him in a drink. The defendant did not go to the bar, but stood near the wall, opposite from the bar, and behind the deceased. Some of the invited persons, including Clay Pillow, accepted McElvain's invitation to drink with him, whereupon Sanders and the deceased, having observed the intoxicated condition of Pillow, a brother-in-law of the defendant, persuaded him to leave the saloon and start towards home. The deceased, Sanders, and Pillow left the saloon, and when they reached the Depot saloon, which was owned by Sanders, Pillow stated that he wanted one more drink, and would go home after getting it, whereupon they entered the Depot saloon. They had been there about 10 minutes when the defendant, McElvain, and Vaughn entered the saloon together, and the testimony is that when these three left the Opera saloon McElvain exposed a pistol and carried it in his hand. Upon entering the Depot saloon, McElvain went to the bar and invited those present to have another drink with him. The deceased was then standing at the bar, and, just as the other invited persons stepped to the bar for the purpose of taking a drink, the defendant, without any apparent provocation, assaulted the deceased, striking, beating, and kicking him. The deceased made no hostile demonstration whatsoever, but when attacked by the defendant he said, "What is the matter—what do you mean?" to which the defendant replied: "You know what I am whipping you for; you whipped my brother when he could not help himself, and you kicked me off the train." The defendant then cursed and abused the deceased, and continued to beat him upon the head and face, the deceased endeavoring to ward off the blows. Finally the deceased released himself, and left the saloon, saying, "If this is the kind of treatment I get, I will leave," the defendant replying, "I think you will get out." As Langdon (the deceased) was going out the door, either the defendant or McElvain said, "We will make him come back and take a drink." Little then called to him, but the deceased did not come. Soon after the deceased left the saloon, the defendant said: "I have been owing him that for some time. He kicked me off the train when he was conductor, and he also whipped my dead brother when he couldn't help himself." While the defendant was assaulting Langdon, McElvain and Pillow stepped back from the bar and drew their pistols, Pillow saying to McElvain, "I think you are handy with your gun." The witness who testified to this fact said he supposed that Pillow thought that McElvain wanted to engage in a difficulty with him, Pillow having previously expressed ill will towards McElvain. After leaving the Depot saloon, Langdon went to Barnett's saloon, a short distance away, opened a drawer in that saloon and took therefrom a pistol belonging to the bartender, and which Langdon carried away against the expressed wish of the bartender. The pistol or reviver was a Smith & Wesson of a .32 or .38 caliber, and having five chambers loaded. Langdon examined the pistol to see if it was loaded, and again examined it while crossing the railroad track between the two saloons, and then returned to the Depot saloon. He stopped in the cigar department, which was separated from the barroom by swinging screen doors in which were glass panels, one of which was broken, and rested his arm on the cigar case. Witness Sanders saw him come in, having observed him through the broken glass panel in the screen, and he remarked to the defendant, "There he is now." The defendant immediately went out to the cigar department, and, advancing upon the deceased, said, "Here you are...