State v. Northington.

Decision Date31 December 1924
Docket NumberNo. 25657.,25657.
Citation268 S.W. 57
PartiesSTATE v. NORTHINGTON.
CourtMissouri Supreme Court

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Oscar L. Northington was convicted of murder in the second degree, and he appeals, Reversed and remanded.

E. L. Drum, of Cape Girardeau, and Smith & Zimmerman, of Kennett, for appellant. Jesse W. Barrett, Atty. Gen. (Ellison A. Poulton, of Canton, of counsel), for the State.

WHITE, J.

The defendant, July 18, 1923, in the circuit court of Cape Girardeau county, was found guilty of murder in the second degree, and his punishment assessed at 10 years in the penitentiary. The charge was murder in the first degree, in that November 14, 1922, in the county of Cape Girardeau, the defendant shot and killed one Otto Goehring.

Defendant's home was in Dunklin county, Mo., where he lived with his wife and four children. He was deputy constable of Holcomb township in that county. Three or four years before the homicide the defendant moved his wife and children to Cape Girardeau for the purpose of educating his children, and thereafter spent part of his time with his family in Cape Girardeau, and part of his time at his home in Dunklin county. An intimacy sprang up between Goehring and the defendant's wife, which aroused the suspicions of the defendant that improper relations were going on between them. The state offered evidence of threats made by the defendant against Goehring in which he had stated that he intended to kill Goehring.

The only eyewitness to the homicide besides the defendant was a girl 12 years of age, named Bessie Froemsdorff. Shortly after 6 o'clock p. m., November 14, 1922, she saw Goehring turn into Sprigg street from Broadway and drive north. He passed Northington, who also was going north on Sprigg street at the same time. She saw the defendant step behind a tree and call, "Hey, Ott!" Goehring stopped his car and backed down to where Northington was standing. After some conversation he got out of his car and stepped behind it, and the shooting began. Defendant fired three or four shots. Goehring ran a short distance to a baker shop and fell. He died a few minutes later. A search of his car and person showed no weapon. Several other persons heard the shots, saw the gun flash, and saw Goehring fall. The evidence for the state tended to show that the defendant was lying in wait for Goehring at that point.

Defendant offered evidence to show that he had a good reputation for being a peaceable and law-abiding citizen; that intoxicating liquor was found in deceased's car when it was searched immediately after the shooting ; that a bottle of liquor dropped out of his pocket when he was being carried to the drug store from the bakery shop where he was picked up; that Goehring was a large, powerful man, weighing about 240 pounds; that defendant was a small man and lame; that the defendant had expostulated with Goehring for attentions to his wife, and that Goehring had threatened him on various occasions. Defendant swore that on the night of the shooting, as Goehring passed him, he heard some one else call "Hey, Ott!" and saw Goehring back his car down towards him; he did not know who was in the car; Goehring turned the car so that the headlights shone upon the walk, and asked the defendant where he was going. Violent conversation ensued in which Goehring threatened to kill defendant, got out of his car and started towards him in a threatening manner. Defendant then shot without intention to kill. Then Goehring got some-thing out of his car which looked like a weapon and defendant then shot to kill. On this evidence defendant was found guilty of murder in the second degree, as stated, and appealed.

I. Appellant assigns error to the failure of the court to give an instruction on manslaughter. The most that the defendant swore to was the threatening attitude and violent language of the deceased. There was no physical violence. It has been repeatedly held that such a provocation is not sufficient to warrant an instruction on manslaughter. State v. Allen, 290 Mo. loc. cit. 273, 234 S. W. 837; State v. Barrett, 240 Mo. loc. cit. 169, 144 S. W. 485; State v. Burns, 278 Mo. loc. cit. 449, 213 S. W. 114. In the Barrett Case the facts are very similar to the facts testified to by the defendant here.

II. The appellant on cross-examination was asked when he loaded his revolver and where he had it in the afternoon before the shooting. He replied that he had it in his scabbard on his belt, and when asked where he had the belt, he answered: "Buckled around me." These questions were objected to and exceptions saved on the ground that it was examination of the defendant upon matters not touched upon in his examination in chief.

The defense was self-defense. Defendant testified that he killed Goehring to keep Goehring from killing him; that he had six loads in his pistol before the encounter with Goehring. All this in chief.

In cross-examination of the defendant, the state is not limited to the very letter of the examination in chief. It may examine as to the circumstances touching the particular matter testified to. As said in the case of State v. Foley, 247 Mo. loc. cit. 638, 153 S. W. 1019:

"The state need, not categorically follow what was said in his chief examination."

It was proper to show, if the state could, in the cross-examination, that the defendant carried the pistol, not for the purpose of self-defense but for the purpose of vengeance. State v. Likens (Mo. Sup.) 231 S. W. 578, loc. cit. 580; State v. Wicker (Mo. Sup.) 222 S. W. loc. cit. 1016. Besides, the cross-examination enabled defendant to explain his possession of the pistol as an officer of Dunklin county; thus the facts developed were favorable to him, and he stated nothing that was harmful to him.

Ill. Appellant assigns error to the giving of instruction No. 7 for the state, which, in the usual form, directed the jury how to consider the statements made by the defendant in relation to the crime, informing them that the defendant is entitled to the benefit of what he said for himself, if true, and the state entitled to the benefit of what he said against himself—that the law presumes it to be true because said against himself. An instruction in this form has been approved time and again by this court, and never disapproved. State v. Hamilton (Mo. Sup.) 263 S. W. loc. cit. 131, and cases cited.

The appellant cites cases like State v. Finkelstein, 269 Mo. 618, 191 S. W. 1002 and State v. Swarens, 294 Mo. 139, 241 S. W. 934, in which this court has condemned instructions which commented upon the evidence of the defendant. We are not...

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