State v. McNally

• Citation: 87 Mo. 644
• Parties: THE STATE v. MCNALLY, Appellant.
• Decision Date: 31 October 1885
• Court: Missouri Supreme Court

87 Mo. 644

THE STATE

v.MCNALLY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Lafayette Criminal Court.--HON. JOHN E. RYLAND, Judge.

REVERSED.

The following instructions were asked by defendant and refused by the court:

“3. The court instructs the jury that if they believe from the evidence that at the time of the shooting and killing of deceased, Washington C. Hyde, defendant was a policeman within and for the city of Sedalia, in Pettis county, Missouri, whose duty it was to arrest parties found disturbing the peace of the inhabitants of said city, or found violating any of the ordinances of said city, and that defendant was attempting to arrest deceased while he (the deceased) was committing a breach of the peace in said city, by violent, tumultuous, offensive or obstreperous and insulting words, conduct or carriage, and that while defendant was in the discharge of his duty in attempting to make such arrest, the defendant as such officer met with forcible resistance from deceased by which a struggle was brought on between defendant and deceased, in which struggle deceased was shot and killed, then said killing was justifiable, and the right of defendant as such officer to shoot and kill deceased under such circumstances does not depend upon the principle of self-defence alone, but upon the necessity of defendant as such officer executing his duty.” “4. The court instructs the jury that if they believe from the evidence that defendant as a policeman within and for the city of Sedalia, Missouri, was, in the lawful discharge of his duty, attempting to arrest deceased, while deceased was engaged in the commission of a breach of the peace, and that deceased forcibly resisted said attempted arrest and brought on a struggle between defendant and deceased, and in said struggle it became necessary for defendant as such officer to shoot and kill deceased in order to overcome said resistance and effect said arrest, then said shooting and killing deceased was justifiable, although the jury may believe that defendant intentionally shot and killed deceased.”

Geo. W. Barnett and L. L. Bridges for appellant.

(1) The court erred in excluding the evidence of witnesses Watson and Gaines as to the conduct and threats of the deceased a few minutes before the homicide. State v. Elkins, 63 Mo. 159; State v. Alexander, 66 Mo. 148; Brownell v. People, 38 Mich. 736. (2) The second instruction given for the state is erroneous, as it makes justifiable homicide, as applied to this case, consist of self-defence alone, and wholly ignores the third clause of section 1235, Revised Statutes. Whar. on Hom. (2 Ed.) 211, 212, 215; Bish. on Cr. Law (3 Ed.) 663; 1 Bish. on Crim. Proc. (3 Ed.) secs. 159, 169, 161; 2 Bish. Cr. Law (5 Ed.) 647, 648, 649, 560; 2 Hale P. C. 117; 1 East P. C. (3) The fourth instruction for the state improperly defines manslaughter in the fourth degree, under section 1249 or 1250, and applies as well to manslaughter in the second degree, under section 1242, Revised Statutes, and this instruction is not cured by the sixth instruction, though correct. State v. Simms, 68 Mo. 305. (4) The sixth instruction for the state is erroneous in that it overstates the minimum punishment for manslaughter in the fourth degree. State v. Sands, 77 Mo. 118. (5) The seventh instruction for the state improperly states the law of self-defence. (6) The eighth instruction with regard to defendant's character should not have been given, and especially is the word, “palliate,” objectionable at the last part of the instruction. State v. Alexander, 66 Mo. 148, 161. (7) The court erred in giving the ninth instruction for the state, in which the jury are told “that except under the plea of self-defence the question of the character of defendant is wholly immaterial.” Such evidence is competent in every criminal case without regard to to the nature of the defence. State v. Alexander, 66 Mo. 148; State v. Underwood, 76 Mo. 630; Whar. on Crim. Evidence (8 Ed.) 57, 58, 66; State v. King, 78 Mo. 555. (8) The court erred in giving the twelfth instruction in defining a reasonable doubt as “a real, substantial doubt.” Judge Philips condemns such an instruction in strong language in State v. Owens, 79 Mo. 619. (9) The language used by attorney for the state in his closing argument was calculated to do the defendant injustice.

B. G. Boone, Attorney General, for the state.

(1) The testimony of Gaines and Watson as to the conduct and threats of deceased before the homicide was properly excluded. State v. Guy, 69 Mo. 435. The threats were not communicated to defendant and there is no evidence that he had any knowledge of them until after the homicide. State v. Sloan, 47 Mo. 604; State v. Keene, 50 Mo. 357; Powell v. State, 19 Ala. 577; People v. Rector, 19 Wend. 569. The deceased was not attempting to carry out a threat at the time of the difficulty. State v. Harris, 59 Mo. 550; State v. Evans, 65 Mo. 574. (2) The second instruction for the state properly ignored the third clause of section 1235, Revised Statutes, because there was no evidence to justify the incorporation of this clause in the instruction. Whar. on Hom. (2 Ed.) sec. 217. (3) The fourth instruction properly defines manslaughter in the fourth degree. It is not vague and indefinite, but if so is cured by the sixth instruction. Henchen v. O'Bannon, 56 Mo. 289; Budd v. Hoffeimer, 52 Mo. 297; Porter v. Harrison, 52 Mo. 524; State v. Simms, 68 Mo. 309. (4) The sixth instruction contains no error for which the judgment should be reversed. State v. Gann, 72 Mo. 374. (5) The seventh instruction is a correct declaration of the law. Nichols v. Winfrey, 79 Mo. 547. Defendant was the aggressor and under the circumstances of the case cannot excuse himself. 1 East P. C. 312; Whar. Crim. Law (7 Ed.) sec. 1288. (6) The eighth instruction as to character is correct. State v. Alexander, 66 Mo. 161. (7) The ninth instruction has been sanctioned by this court. State v. Keene, 50 Mo. 360. (8) The twelfth instruction as to reasonable doubt has been approved by this court from the State v. Nueslein, 25 Mo. 111, to State v. Jones, 78 Mo. 282. (9) Defendant's third and fourth instructions were properly refused, ( a) because there was no evidence that he was a policeman within and for the city of Sedalia; ( b) if he was a policeman he could, under his appointment, only act as such about the market house in Sedalia; ( c) he was not a policeman of the city and had no authority to make arrests, except as above stated. Revised Statutes, section 4295.

SHERWOOD, J.

The defendant was indicted for the murder of Wash. C. Hyde. The homicide occurred after dark in the second story of the Dexter building in the city of Sedalia. The deceased, who, it seems, was a man of powerful physique, and had a reputation of being violent and dangerous when in his cups, was, on the evening in question, engaged in kicking in the panels of a door, and when remonstrated with by one of the inmates of the building, answered with abusively profane language, whereupon the recorder of the city, Fraker, being telephoned respecting the disturbance, ordered the defendant, who was a policeman, to arrest deceased, and while engaged in executing this order the killing occurred. There was some testimony tending to show that the homicidal act was unnecessary in order to effect the arrest, and that rashness characterized defendant's conduct; but there was much testimony to the contrary, indicating that the shooting was accidentally done in the endeavor and struggle to make the arrest, and indicating also that the arrest could not have been made without resorting to the most extreme measures. Being tried, the defendant was found guilty of manslaughter in the fourth degree, and his punishment assessed at two years imprisonment in the penitentiary and judgment in accordance therewith. Various errors are assigned for the reversal of this judgment. They are based on the giving of improper instructions on behalf of the state; the refusing of proper instructions on behalf of defendant; the rejection, when offered on his part, of competent evidence, and the improper language used in the closing argument of counsel for the state.

I. There was an error in refusing to admit testimony touching deceased's threats, made some fifteen minutes before the shooting occurred, that “ he was going to have blood before morning.” The testimony of the defendant, corroborated to some extent by that of Prof. Moore, the inmate of the building, who had telephoned Fraker for a policeman, was that, upon the arrival of defendant at the scene of the disturbance, deceased had refused to be arrested, violently assaulted him, and having something in his hand, had struck the defendant and knocked him down, and in the struggle, and while deceased was making threats of killing defendant and grabbing for the latter's pistol, it was twice by accident discharged, one of the balls piercing defendant's left coat sleeve and shirt sleeve, near the wrist, and the other inflicting the fatal wound on deceased, which is the basis of the present indictment. This evidence as to threats of deceased was competent on the same ground that evidence of uncommunicated threats is competent where the deceased is the aggressor. The reason for the admission of such evidence is that it throws light upon the transaction, on the motive of the deceased and the nature and character of the assault, in resisting which he is killed. State v. Elkins, 63 Mo. 159; State v. Alexander, 66 Mo. 148.

And evidence of such threats, “ or declarations of intention,” as they are termed in State v. Dickson, 78 Mo. 438, is not to be rejected because of their vagueness or the obscurity of language in which they are couched, human experience and the annals of crime having established that very frequently those intending crime in particular or crime in general are accustomed to indulge in mysterious innuendoes or vague boasts...