State v. Matthews

Decision Date21 February 1899
Citation49 S.W. 1085
CourtMissouri Supreme Court

2. It is not generally true that the right of self-defense does not 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 advantage over him, but may immediately kill the latter, if necessary to avoid the danger.

3. The fact that one puts himself in the way of being assaulted by another, though he expects the latter will attack him, does not preclude him from setting up self-defense.

4. Though one is not justified in killing another who is tearing down and carrying away a fence belonging to the former, such killing is nothing more than manslaughter in the fourth degree, if done in a heat of passion engendered by the removal of the fence.

5. Where defendant shot deceased while the latter was removing the former's fence, an instruction that such fact did not justify defendant is misleading, as it should also state that, if the killing was done in the heat of passion, it would be only manslaughter.

6. The fact that defendant claims that the killing was done in self-defense does not destroy the right to an instruction based on the claim that the killing was manslaughter.

Appeal from circuit court, Douglas county; W. N. Evans, Judge.

William B. Matthews was convicted of murder in the second degree, and he appeals. Reversed.

A. H. Livingston, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, Asst. Atty. Gen., for the State.


Indicted for murder in the first degree for killing one R. H. Morgan with a shotgun on the 17th of April, 1896, defendant, being put upon his trial, was found guilty of the second degree of that offense, and his punishment assessed at 14 years in the penitentiary.

This homicide grows out of a disputed line, and a portion of a disputed rock fence, which, if removed, would open defendant's field, and leave it uninclosed, and, besides, would admit the water from the hillside to sweep over defendant's field. A lane running north and south divided the two fences of defendant and of Hammond, that of defendant lying on the west and Hammond's on the east of that lane, which, at its north end, opened into a public road, which at this point ran west on the north side of defendant's field. The north end of the lane terminated at the foot of a steep hill, which was the watershed of that immediate locality. The disputed boundary and rock fence lay between the northeast and the north-west corners of the respective fields. Hammond had lived on his farm about 19 years, and had never, so far as appears, had any difference or difficulty with his vis á vis neighbor. Defendant, 45 years of age, had lived on his farm some 15 years, in the county some 30 years, had been constable and justice of the peace some 10 or 12 years, and bore an excellent reputation for being a peaceable and law-abiding citizen. On the other hand, Morgan, who had lived on the farm of Hammond, his stepfather, for about the space of a year, and had rented it, it seems, for the year 1896, had the reputation, as some of the testimony tends to show, of being of a rash, quarrelsome, turbulent, and dangerous disposition of which defendant was informed prior to the fatal occurrence, and has been warned by some of his neighbors to be on his guard against Morgan. Indeed, it seems Morgan had conceived a strong dislike against defendant, and had made serious threats against him; and of these threats defendant had been told. About two weeks before the homicide, Morgan had gotten into an altercation with defendant's youngest son, had thrown rocks at him, and, when remonstrated with by defendant on that occasion, had invited defendant out of his field, in order to beat him; saying to the latter that he had it laid up for him, and intended to do him up. Morgan was a large, stout man, weighing from 175 to 190 pounds, and was about 38 years old. Defendant had been prosecuted for obstructing the public road at the northeast corner of his field, and was convicted of that offense. On the termination of this prosecution, defendant, under the direction of the prosecuting attorney and sheriff as to where his fence should be erected, had set his fence back on his line as it was ascertained to be on the trial aforesaid, and he built this portion of the fence of rock, in order to prevent his field from being flooded. After this building of his fence back on his line, defendant was repeatedly annoyed by Morgan throwing this fence down, when defendant would rebuild it. This process of rebuilding had been completed just after noon of the day of the homicide, by defendant and two or three of his nearest neighbors. In the afternoon, a passing neighbor having informed Morgan, who was at work in his field, plowing, of the fence being replaced, he immediately quit his work, sent his team around by the bottom road, went by his house for his ax and pistol, and with Hammond, his stepfather, and Mrs. Hammond, his mother, he went to where the rock wall had been replaced, taking with him two chains. The others of the family — two grown women, and two boys, one 12 years and the other younger — all went to what was termed the "rock pile," as the rock wall at the locus in quo was called. Arriving there, they all went to work tearing down defendant's fence, and placing the rock thus obtained on that of Hammond. Defendant was in his field, cutting sprouts. His son, who was in the field also, and plowing, but somewhat nearer to the rock wall than his father, saw Morgan, and called his father's attention to it, whereupon defendant, looking up, saw Morgan coming down the hill towards the rock wall at a brisk walk or run. He had on his arm an ax, and defendant thought he saw him have also a pistol. Behind Morgan were his stepfather and mother. Defendant also noticed the others of the party proceeding to the same point with horses, etc. Thinking it prudent to do so, defendant went to his house, and got a shotgun, and returned to the field, and went towards where Morgan and the others were tearing defendant's fence down; and when defendant got within about 30 steps of him, where they were tearing the fence down, Morgan said to him, "Don't come any closer." Defendant told him to go away, and not to disturb his fence, when Morgan replied with foul and abusive language. Whether defendant had his gun presented at Morgan at the time or not is the subject of conflicting evidence. Some of the testimony shows it was thus carried; other that defendant merely carried it in his hands; and other still that it was on his shoulder. After testifying, as above stated, with regard to what Morgan said to him, defendant continued: "I kept insisting that Morgan get away; that I didn't want any trouble with him; and that that was my fence, and he very well knew the court had so decided; and, if he thought it wasn't, to go into court, and, when the court decided it was his, he should have it, and not until then. He kept on abusing me, and then he had a pistol. The first I seen of it, he was behind the wall from me, and he kind o' scooted down by the side of the tree, and I could just see the pistol and a little side of his face; and when he did that I turned and walked a few steps right around towards the lane. I was out from the lane a little ways, and about that time his mother came out, and commenced quarreling at me, and I said...

To continue reading

Request your trial
25 cases
  • State v. Bowyer
    • United States
    • West Virginia Supreme Court
    • December 19, 1957
    ...40 C.J.S. Homicide § 120; Golden v. State of Georgia, 25 Ga. 527; People v. Davis, 300 Ill. 226, 133 N.E. 320; State v. Matthews, 148 Mo. 185, 49 S.W. 1085, 71 Am.St.Rep. 594. In the absence of some act of the defendant which provoked an attack by Weeks, the possession of a revolver during ......
  • State v. Malone
    • United States
    • Missouri Supreme Court
    • June 5, 1931
    ...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 defend......
  • State v. Williams
    • United States
    • Missouri Supreme Court
    • October 18, 1935
    ...44 S.W. (2d) 50; State v. Rennison, 267 S.W. 850, 306 Mo. 473; State v. Creed, 252 S.W. 678; State v. Ball, 262 S.W. 1043; State v. Matthews, 49 S.W. 1085, 148 Mo. 185. (d) This instruction advises the jury that the right of self-defense will not avail in any case where the defendant volunt......
  • State v. Lowry
    • United States
    • Missouri Supreme Court
    • January 10, 1929
    ...defendant's theory of the case and should have been given. Jones v. State, 26 Tex. App. 12; State v. Hancock, 73 Mo. App. 19; State v. Matthews, 49 S.W. 1085; State v. Rose, 142 Mo. 418; Plumner v. State, 135 Ind. 312. (11) The city ordinance on speeding should not have been introduced, as ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT