State v. McNamara

• Decision Date: 10 February 1890
• Citation: 13 S.W. 938,100 Mo. 100
• Parties: The State v. McNamara, Appellant
• Court: Missouri Supreme Court

13 S.W. 938

100 Mo. 100

The State v. McNamara, Appellant

Supreme Court of Missouri

February 10, 1890

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

John M Barker, Barker & Shackelford and Silver & Brown for appellant.

(1) The court erred in allowing the indictment withdrawn, amended and changed. R. S. 1879, sec. 1798. (2) The instructions given by the court were erroneous in that they assumed that Geo. Woods did not attack the defendant, but merely restrained him and also assumed that defendant was in the act of committing a felonious assault upon some other person. Peck v Ritchey, 66 Mo. 114; Russell v. Minteer, 83 Ill. 150; Boddie v. State, 52 Ala. 395; Snyder v. State, 59 Ind. 105; State v. Wheeler, 79 Mo 366. (3) The court erred in not giving an instruction as to the consideration of defendant's good character. The evidence of defendant's good character was uncontradicted. Such evidence is always relevant, and is material in all criminal cases. It is an item of proof to be considered by the jury. Whar. Crim. Ev. [9 Ed.] secs. 65, 67; State v. McMurphy, 52 Mo. 251; State v. Alexander, 66 Mo. 148; State v. Underwood, 76 Mo. 630; State v. McNally, 87 Mo. 644. When defendant in a criminal case has given evidence tending to establish his good character, he is entitled to have the jury instructed as to its effect. State v. Swain, 68 Mo. 605. If it be conceded that it was defendant's duty to ask an instruction on this branch of the case, and that his first instruction on this subject was erroneous and properly refused, still it was the duty of the court to give a correct instruction on this subject, and it committed reversible error in allowing the case to go to the jury without so doing. State v. Mathews, 20 Mo. 55; State v. Kilgore, 70 Mo. 546; State v. Maxwell, 92 Mo. 542; State v. Jones, 61 Mo. 232; State v. Stonum, 62 Mo. 596; State v. Lowe, 93 Mo. 547. (4) The remarks of assistant counsel for the state that evidence of good character could do defendant no good, and that the only object of admitting such evidence was to show that defendant did not do the act charged, was gross error, especially in consideration of the fact that defendant was deprived of proper instructions on the subject of character, and that this mis-statement of the law was allowed to go unchallenged by the court, although objection was made by defendant's counsel at the time. It is not the duty of prosecuting attorneys to declare the law to the jury. And where they make, in argument, gross mis-representations of the law, which are allowed to go unrebuked by the court, it is such error as demands a reversal of the judgment. State v. Mahly, 68 Mo. 315; State v. Reed, 71 Mo. 200; State v. Jackson, 95 Mo. 653; State v. Martin, 74 Mo. 547

John M. Wood, Attorney General, for the State

(1) Neither the evidence nor the instructions can be noticed for the reason that they have not been preserved by a bill of exceptions. State v. Broderick, 70 Mo. 622; State v. Duckworth, 68 Mo. 156. (2) The instruction complained of does not assume, as stated by appellant, that defendant was being restrained by George Woods at the time of the shooting, but leaves the whole question to be determined by the jury. (3) It has been decided by this court that while it is the "duty of the court to declare the law applicable to every crime or grade of crime of which, under the evidence, the jury might convict the accused, as to collateral matters, it is for the respective parties to ask such instructions as they may be entitled to." If they are required to ask instructions, it is contemplated that they are to ask correct ones. The instruction as to the defendant's character, which was refused, was clearly erroneous, and, being upon a collateral matter, the court committed no error by a failure to give a proper instruction. State v. Brooks, 92 Mo. 542, and cases cited. (4) A juryman cannot be allowed to impeach his verdict by saying it was rendered under a mistaken view of the law or facts several months after it was rendered. There was no ground stated in the motion for a new trial to which juror Owen's affidavit could apply; his mistake, if any, was not alleged as one of the reasons for asking a new trial. (5) The remarks of counsel in his concluding argument for the state were not such as to justify a reversal. He had a right to comment upon all the evidence in the cause, and to draw conclusions therefrom. State v. Emory, 79 Mo. 461; State v. Zumbunson, 86 Mo. 111; State v. Grffin, 87 Mo. 608; State v. Hoffman, 78 Mo. 256; State v. Stark, 72 Mo. 37; State v. Hopper, 71 Mo. 433.

Brace J. Sherwood, J., dissents; Barclay, J., concurs in the result.

OPINION

Brace, J.

-- At the April term, 1887, of the circuit court of Montgomery county, the defendant was indicted under section 1262, Revised Statutes, 1879, for shooting at one George W. Woods, "on purpose and with malice aforethought," with a loaded pistol with intent to kill, and at the same term was found guilty of assault with intent to kill under section 1263, and his punishment assessed at imprisonment in the penitentiary for two years. From the sentence and judgment on the verdict he appeals.

The shooting took place at a school meeting in the district on the fifth of April, 1887, when an election was being held for school directors. Two ballots had been taken, which had resulted in a tie, and the third was progressing when a young man by the name of Rodgers going to vote, his vote was challenged by John Woods, a brother of George, whereupon an angry altercation ensued between them, and John Woods rushed toward Rodgers, followed by his brother Alexander, who was near him when the altercation commenced; while these two brothers were bearing down on Rodgers and running probably in a general direction toward the place where the defendant was, he drew his pistol, a revolver, from his hip pocket, brought it round to the front of his person with his right hand, caught it with his left, raised it facing in the direction of the Woods brothers, when George Woods, who was in the rear of the defendant, and near him, came up behind him, threw his arms around him, pressing defendant's arms to his side. The defendant, by struggling, got his right arm loose from George's embrace, raised it, bringing the pistol in his right hand over his left shoulder, and, turning his face in that direction, looked toward George's head and fired, the shot passing through George's cap. The defendant was then thrown to the floor and the revolver taken away from him.

The evidence for the state tended to prove that nothing offensive had been done or said to the defendant by any one before he drew his revolver, and that George Woods had been sitting quietly near him up to the moment when he took hold of the defendant in the manner stated for the purpose of preventing him using it. The defendant testified that he drew his pistol and placed himself in a defensive position, in apprehension of an attack from Alexander Woods, who was approaching him and drawing off his coat, when he received a blow from some one on the back of his head, was immediately thereafter grabbed from behind, tried to look around, and in the impulse of self-defense threw up the pistol and fired.

1. The record shows that the indictment in this cause, which is in every respect a sufficient and formal one, was returned into court and entered on the twenty-sixth of April, 1887. Its validity, or that of the proceedings under it, is in no way affected by the fact that it was presented the day before, but not having the names of the state's witnesses endorsed thereon was not entered, but by order of the court returned to the grand jury for that reason, as the affidavit of the clerk tends to show.

II. The bill of exceptions was filed in vacation, by leave of court entered of record in term within the time allowed, and is part of the record for review. Sess. Acts, 1885, p. 214. But in it we find no specific objections to the admission or rejection of evidence, nor any exceptions properly taken and saved to any ruling of the court thereupon.

III. The instructions given by the court are, perhaps, obnoxious to some of the verbal criticisms made upon them, but on the whole presented very fairly the issue between the state and the defendant on the offense of which he was found guilty, telling the jury, in substance, that if the defendant in the heat of passion shot at George Woods with the intention of killing him, the defendant was guilty of the offense defined in section 1263, unless such shooting was done under such circumstances as to be justified on the ground of self-defense, and requiring them to find all the necessary facts constituting the offense beyond a reasonable doubt, and to acquit if they had a reasonable doubt on the whole case.

The instruction on self-defense was not erroneous in that the question whether the defendant had reasonable cause to believe that he was in immediate danger was submitted to the jury (State v. Sloan, 47 Mo. 604; State v. Eaton, 75 Mo. 586; Nichols v. Winfrey, 79 Mo. 544), and in other particulars was such as has been approved by this court. State v. Thomas, 78 Mo. 327.

IV. The defendant asked four instructions, all of which were refused. The second, third and fourth were upon the ground of self-defense, and, in so far as they stated correct propositions of law applicable to the facts of the case, were as favorably stated for the defendant in the instructions given by the court on that branch of the case as in those asked; and, for the refusal to give them, he has no just cause of complaint. The first is as follows:

"1. If the jury from all the evidence in this cause have any doubt of the defendant's guilt, and...