State v. Malone, No. 30987.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Cooley
• Citation: 39 S.W.2d 786
• Decision Date: 05 June 1931
• Docket Number: No. 30987.
• Parties: THE STATE v. JOHN R. MALONE, Appellant.

39 S.W.2d 786 THE STATE
v.
JOHN R. MALONE, Appellant. No. 30987. Supreme Court of Missouri. Division Two, June 5, 1931.

[39 S.W.2d 787]

Appeal from Scott Circuit Court. — Hon. E.M. Dearing, Judge.

REVERSED AND REMANDED.

M.G. Gresham, Bailey & Bailey and Harry C. Blanton for appellant.

(1) The court erred in refusing to permit the defendant to show the details of a trouble the deceased had had with Bean at the roadhouse about thirty minutes prior to the homicide, in which the defendant offered to show that during the trouble the deceased had cut Bean across the face and body in the presence of defendant, following which Malone used his handkerchief to wipe the blood from Bean's face and to staunch the flow of blood, at which time the deceased said, "You are so friendly to him, I will get both you son-of-a-bitches a little later," and the court erred in holding that it was not competent for the defendant to show any remarks referring to Bean or anything that happened concerning the trouble Marshall had had with Bean. (a) All the circumstances immediately leading up to the homicide which would show deceased's state of mind; or that would show who was the aggressor; or that would corroborate the making of the threats against appellant by the deceased, or give a motive or reason for such threats; or that would show the appellant had reasonable cause for apprehending great personal injury at the hands of the deceased; or that formed part of res gestae, are admissible. State v. Burns, 312 Mo. 673, 280 S.W. 1029, 44 A.L.R. 848; State v. Dettmer, 124 Mo. 426; State v. Nelson, 166 Mo. 191; State v. Testerman, 68 Mo. 415; State v. Dodson, 29 S.W. (2d) 62. (b) Error is presumed to be harmful and the burden is upon the State to show that it is harmless. State v. Nelson, 166 Mo. 191. (2) The court erred in giving Instruction No. 12 on behalf of State. (a) The first part of it constitutes a flagrant comment on the evidence. Sec. 3694, R.S. 1929; State v. Yates, 301 Mo. 255, 256 S.W. 812; State v. Cole, 304 Mo. 105, 263 S.W. 211; State v. Northington, 268 S.W. 57; State v. Adkins, 284 Mo. 680, 225 S.W. 982; State v. Warren, 33 S.W. (2d) 129; State v. Ball, 262 S.W. 1046. (b) It tells the jury to disregard certain significant facts upon which the appellant had the right to rely. State v. Adkins, 284 Mo. 680, 225 S.W. 982; State v. Yates, 301 Mo. 255, 256 S.W. 812; State v. Mathis, 18 S.W. (2d) 10; State v. Cole, 304 Mo. 105, 263 S.W. 211. (c) It unfairly discriminates against the defendant, because it says nothing to the effect that the words of defendant did not justify the assault the deceased was about to make on defendant. State v. Warren, 33 S.W. (2d) 129. (d) The latter half of the instruction eliminated the matter of self-defense, because it in effect told the jury that there could be no acquittal, if the killing was revengeful or malicious, which is not the law, because even though the appellant bore malice toward the deceased, still he could rely on self-defense, if otherwise entitled thereto. State v. Matthew, 148 Mo. 185; State v. Rapp, 142 Mo. 443. (3) The court erred in giving Instruction 10 on behalf of the State casting the burden of proof on defendant to show he acted in self-defense. (a) The burden was on State to show that defendant did not act in self-defense and to make out its entire case beyond a reasonable doubt. It had to show a malicious killing, i.e., under such circumstances as not to be justifiable on ground of self-defense. State v. Hickam, 95 Mo. 322; People v. Shanley, 63 N.Y. Supp. 449, 49 App. Div. 56; State v. Pratt, 50 Tex. Crim. 227; Lyons v. State, 71 Tex. Crim. 189; State v. Manns, 48 W. Va. 480; State v. Dillard, 59 W. Va. 197; People v. Turner, 269 Pac. 204; McDonald v. State, 12 Ga. App. 526; State v. Hoerner, 215 N.W. 277; State v. Burzette, 222 N.W. 394; State v. Yates, 132 Iowa, 475; State v. Partipilo, 139 Iowa, 474; State v. Conda, 156 La. 679; State v. Linders, 154 La. 65; State v. Vial, 153 La. 883; State v. Ardoin, 128 La. 14; State v. Varnado, 128 La. 883; State v. Herring, 131 La. 972; State v. Sandiford, 149 La. 933; State v. Scarborough, 152 La. 669; State v. McPherson, 144 Minn. 498; State v. McGrath, 119 Minn. 321; Covington v. Commonwealth, 136 Va. 665; People v. Duncan, 315 Ill. 106; People v. Cathey, 220 Mich. 628; Jones v. State, 202 Pac. 187, 20 Okla. App. 233; Proctor v. State, 211 Pac. 1057, 22 Okla. App. 445. (b) Which burden remains on the State throughout the case and never shifts, even after making out prima-facie case. State v. Wingo, 66 Mo. 181; State v. Hardelein, 169 Mo. 579; State v. Hudspeth, 150 Mo. 12; State v. Young, 99 Mo. 666. (4) The court erred in refusing to give Instruction D offered by the defendant. (a) It presents the defendant's theory of the case, namely, that if the defendant did not return to the restaurant for the purpose of hurting the deceased, but only to protest and warn deceased of his impending arrest, the appellant did not thereby lose his right of perfect self-defense. State v. Hudspeth, 159 Mo. 178; State v. Hudspeth, 150 Mo. 33; State v. Evans, 124 Mo. 397; State v. Bartlett, 170 Mo. 658; State v. Matthews, 148 Mo. 185; State v. Moore, 29 S.W. (2d) 148. (b) Defendant is entitled to the converse of the State's instructions. State v. Hayes, 247 S.W. 168; State v. Gurner, 274 S.W. 60; State v. Hayes, 256 S.W. 748; State v. Cantrell, 290 Mo. 232. (5) The court erred in giving for the State Instruction 8. (a) By including phrase. "If you find the defendant did not seek the difficulty," without further defining what was meant by the phrase, it deprived the defendant of all self-defense, because the jury might find that by using the words he did at the time, Malone "sought the difficulty." Words alone, even though apt to bring on a difficulty, will not deprive the defendant of the right of perfect self-defense, unless he used them for the very purpose of inducing an assault. State v. Higgerson, 157 Mo. 395; State v. Garrett, 170 Mo. 395; State v. Ball, 262 S.W. 1045. (b) In including therein the sentence, "On the other hand, it is not enough that the defendant believed in the existence of such danger, but he must also have had reasonable cause for so believing before he can be acquitted upon the ground of self-defense." State v. Aurentz, 263 S.W. 178.

Stratton Shartel, Attorney-General, Edward G. Robison, Assistant Attorney-General, and M.E. Montgomery for respondent.

(1) Appellant says that the court erred in excluding the particulars of a difficulty between deceased and Bean at a roadhouse an hour or more prior to the killing. No error was committed in this regard. (a) This was a disconnected difficulty between deceased and a third party, and was inadmissible. State v. Swearengin, 269 Mo. 177; State v. Ethridge, 188 Mo. 352; State v. Birks, 199 Mo. 263; State v. Woods, 124 Mo. 412; State v. Hanson, 231 Mo. 14; State v. Palmer, 281 Mo. 525; State v. Bostwick, 245 Mo. 483; State v. Jones, 256 S.W. 787; State v. Clayton, 100 Mo. 516; State v. Fletcher, 190 S.W. 317. (b) The difficulties between appellant and deceased, that intervened between the Bean trouble and the killing, were fully shown, thus giving the jury all the light, as to the conditions of the minds and feelings of deceased and appellant, and who was the aggressor in the fatal difficulty, that full particulars as to the Bean trouble, an hour or more previously, could possibly have given. (c) Appellant claims that the particulars of the Bean trouble were admissible to enlighten the jury on the issues raised on appellant's plea of self-defense. Respondent respectfully submits that if the exclusion of this evidence was error, it was harmless, as there was no self-defense in this case, because the most that the appellant claims that the deceased did at any time consisted only of threatening and abusive words and gestures. State v. McNeese, 284 S.W. 785; State v. Roberts, 242 S.W. 669; State v. Dettmer, 124 Mo. 426; State v. Pollard, 139 Mo. 220; State v. Hancock, 148 Mo. 488; State v. Holloway, 161 Mo. 135; State v. Lewis, 118 Mo. 79; State v. Pohl, 170 Mo. 422; State v. Bryant, 102 Mo. 24; State v. Fraga, 199 Mo. 127; State v. Gartrell, 171 Mo. 489; State v. Webb, 205 S.W. 187; State v. Seward, 247 S.W. 150; State v. Webb, 205 S.W. 187. (d) Where a review of the entire record shows that no harm has resulted to appellant, the case will not be reversed though error was committed by the trial court. State v. Schmittzehe, 3 S. W. (2d) 235; State v. Allen, 246 S.W. 946; State v. Anglin, 222 S.W. 776; State v. McNeese, 284 S.W. 785; State v. Cutter, 1 S.W. (2d) 96; State v. Bowman, 1 S.W. (2d) 153. (2) Appellant next complains that Instruction 12 telling the jury that vile epithets do not justify an assault, is erroneous. The giving of this instruction has been often approved by this court. State v. Robinett, 281 S.W. 29; State v. Little, 228 S.W. 797; State v. Canton, 234 S.W. 799; State v. Gieseke, 209 Mo. 331; State v. Ballance, 207 Mo. 607; State v. Gamble, 119 Mo. 427; State v. Gartrell, 171 Mo. 489; State v. Griffin, 87 Mo. 608; State v. Gordon, 191 Mo. 114; State v. Mills, 272 Mo. 526; State v. Foran, 255 Mo. 213; State v. Fletcher, 195 S.W. 317. If giving this instruction was error it was harmless, since there was no self-defense in this case. (3) Appellant complains of Instruction 10 casting on him the burden of proving that he acted in self-defense. This instruction is correct, ending as it did, with the following provisions: "If however, upon a full consideration of all of the testimony, you have a reasonable doubt of defendant's guilt, you should acquit the defendant." State v. Roberts, 242 S.W. 669; State v. Jones, 78 Mo. 278; State v. Alexander, 66 Mo. 148; State v. Tabor, 95 Mo. 585; State v. Underwood, 57 Mo. 40; State v. Brown, 64 Mo. 367; State v. Holme, 54 Mo. 153; State v. Grant, 76 Mo. 236; State v. Eason, 18 S.W. (2d) 71. (4) Appellant...