State v. Manning
| Decision Date | 12 May 1947 |
| Docket Number | 40288 |
| Citation | 202 S.W.2d 18,356 Mo. 477 |
| Parties | State v. Claude William Manning, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court; Hon. Warren L. White Judge.
Reversed and remanded.
Roscoe C. Patterson for appellant.
(1) The court erred in failing and refusing to instruct the jury at the close of the evidence to find the defendant not guilty on the ground that the killing was in the necessary defense of himself from great bodily harm or death. The right of self-defense may imply the right of attack. One who has reasonable ground to believe that another intends to do him great bodily harm, and that such design will be accomplished need not wait until his adversary gets an advantage over him but may immediately kill the latter if necessary to avoid the danger. State v. Matthews, 148 Mo. 185; State v. Hudspeth, 150 Mo. 12; State v. Ball, 262 S.W. 1043; State v. Rennison, 267 S.W. 850, 306 Mo. 473; State v. Eaton, 75 Mo. 586. (2) A person may resist a public whipping and if his physical inferiority to the assailant prevents a resistance, he may use a weapon with which to defend himself. He has the right to use such force as appears to him to be reasonably necessary under the attending circumstances. He is not required to nicely gauge the amount of force to be used in defending himself, nor is he required to retreat. State v. Bartlett, 170 Mo. 658; State v. Creed, 252 S.W. 678, 299 Mo. 307; State v. Euyard, 108 S.W.2d 337, 341 Mo. 467. (3) One who kills his adversary in a second conflict which he did not provoke and which occurred after he had withdrawn from the original conflict, retains his full right of self-defense though he may have provoked original conflict. State v. Moncado, 34 S.W.2d 59; State v. Heath, 237 Mo. 255, 141 S.W. 26; State v. Gadwood, 346 Mo. 466, 116 S.W.2d 42; State v. Graves, 182 S.W.2d 46, 352 Mo. 1102. (4) One who is about to be attacked in order to act properly in his own self-defense is not bound to wait until his adversary strikes a blow before he takes steps to prevent the blow. State v. Daugherty, 196 S.W.2d 627. (5) The court erred in giving Instruction 5 offered by the State. It is clearly a comment on one item of evidence. A portion of the instruction is not supported by the evidence and is entirely contrary thereto. Instructions must be based on the evidence in the instant case. State v. Kauffman, 46 S.W.2d 843, 329 Mo. 813; State v. Monday, 76 S.W.2d 1088; State v. Farmer, 111 S.W.2d 76; State v. Rusch, 119 S.W.2d 265, 342 Mo. 959; State v. Ivanhoe, 177 S.W.2d 657; State v. Byrnes, 177 S.W.2d 909. (6) The court erred in giving instruction Number 6 offered by the State. This instruction has been expressly condemned as reversible error by three decisions of this court. State v. Rozelle, 225 S.W. 931; State v. Archie, 256 S.W. 903, 301 Mo. 392; State v. Welsh, 278 S.W. 755, 311 Mo. 476.
J. E. Taylor, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.
(1) The court did not err in refusing to instruct the jury at the close of the evidence to find the appellant not guilty on the ground that the killing was in the necessary defense of himself from great bodily harm or death. State v. Berkley, 109 Mo. 665; State v. Denison, 154 S.W.2d 756; State v. Farrell, 6 S.W.2d 857; State v. Morgan, 56 S.W. 385; State v. Singleton, 77 S.W.2d 80; State v. Westmoreland, 126 S.W.2d 202. (2) The court did not err in giving instruction Number 5 on behalf of the State. State v. Barbata, 336 Mo. 362, 80 S.W.2d 865; State v. Fletcher, 190 S.W. 317; State v. Foran, 255 Mo. 213; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Maples, 96 S.W.2d 26; State v. Murrell, 169 S.W.2d 555; State v. Rider, 95 Mo. 474; State v. Smith, 194 S.W.2d 905; State v. Sovern, 225 Mo. 580; State v. Trainer, 80 S.W.2d 131. (3) The court did not err in giving Instruction 6 on behalf of the State. State v. Barbata, 336 Mo. 362; State v. Decker, 33 S.W.2d 958; State v. Gentry, 44 S.W.2d 27; State v. Hardy, 95 Mo. 455; State v. McGee, 336 Mo. 1082, 1103 (15); State v. Maples, 96 S.W.2d 26 (3); State v. Miles, 253 Mo. 427; State v. Murrell, 169 S.W.2d 455; State v. O'Leary, 44 S.W.2d 50; State v. Smith, 194 S.W.2d 905; State v. Stewart, 212 S.W. 853; State v. Vansant, 80 Mo. 67; State v. Yocum, 205 S.W. 232.
Appellant, Manning, charged with the murder of George Vinson, was convicted of manslaughter and sentenced to a term of five years' imprisonment.
On the night of March 17, 1946, appellant with Claude Russell and two women went to a night club in Springfield, Missouri, about 8:00 p.m., where they were joined by another woman. About midnight Vinson and his brother-in-law, Linville Ice, came to the night club. All these persons and many others remained at the club, drinking liquor and dancing, until about closing time, 1:15 a.m. Appellant and his party left first and started to Russell's car which was standing near the club. About that time Vinson, apparently with little if any provocation, knocked a man down at the doorway of the club. While the proprietor and others were holding Vinson, some one told appellant that Vinson had threatened to whip him. Appellant went back and asked Vinson if he had made such a statement. Vinson said he had not, but that he could and would whip him. Either appellant or Vinson suggested that they meet at Grant and Commercial Streets and fight it out. Then appellant and his party drove away in Russell's car. They passed the intersection of Grant and Commercial three times. On the third trip they saw Vinson and Ice standing beside the latter's parked truck. Russell, who was driving his car in which he, appellant and the women were riding, drove by without stopping. Ice and Vinson followed in the truck and tried to crowd the car off the road. The pursuit continued until Russell's car ran out of gasoline and was parked at the side of the road. Ice parked his truck a short distance in front of the car and both he and Vinson got out and started back toward the car. Ice had a tire tool in his hand. Vinson took off his jacket and threw it in the truck. Appellant testified that Vinson took something out of his pocket. Appellant got out of the car and, when Vinson was about six feet from him, appellant picked up some object from the floor of the car and threw it, striking Vinson in the forehead. Vinson fell unconscious, was taken to a hospital where he died several days later.
Appellant and Vinson had gone to school together and had known each other for several years. Appellant is about five feet eight inches tall and weighs about 160 pounds. Vinson was six feet two inches tall, weighed about 210 pounds and was a strong man. Several witnesses testified that Vinson bore the reputation of being a quarrelsome and turbulent man.
Appellant assigns as error: the refusal of the court to direct a verdict of acquittal on the ground of self defense and the giving of instructions 5 and 6.
The first assignment is overruled. We hold that, under the evidence, the issue of self defense was for the jury.
Instruction number 5 is as follows:
"The Court instructs the jury that although the jury may believe from the evidence that, prior to the time he was struck, the deceased had made threats against the defendant, yet this fact alone does not justify, excuse or palliate the offense or murder, provided the jury shall further believe from the evidence that at the time deceased was struck he made no threats against the defendant, and made no attack or assault upon defendant and made no demonstration of violence against defendant."
Appellant complains of the latter part of the instruction, which we have emphasized.
The State concedes that the instruction has been disapproved in some of our decisions, but not for the reasons mentioned in appellant's motion for new trial, which, in substance, were: that the instruction was not based upon nor warranted by the evidence because at the very time the fatal blow was struck deceased was advancing upon appellant for the purpose of assaulting him.
We think the instruction tended to somewhat impair the issue of self defense which was submitted in other instructions and that this question was properly presented in the motion for new trial. True, there was no evidence that deceased made any threats at the time he was struck or that he actually assaulted appellant, but the evidence was that, shortly before, the deceased had threatened to whip appellant, had...
To continue reading
Request your trial