State v. Palmer

• Decision Date: 30 April 1886
• Citation: 88 Mo. 568
• Parties: THE STATE v. PALMER, Appellant.
• Court: Missouri Supreme Court

88 Mo. 568

THE STATE

v.PALMER, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from Cooper Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

The following is the eleventh instruction given for the state:

“If the jury believe, from the evidence, that the defendant and the deceased, prior to their meeting in Ashcraft's store, had an altercation, and that the defendant afterward went into said store and there met the deceased, and that a difficulty arose between them, and that the deceased advanced towards the defendant in a threatening manner, and if the jury shall further find, from all the facts and circumstances in evidence, that the defendant had reasonable cause to believe, and did believe, that the deceased intended to do him some great bodily harm, and that there was imminent danger of said design being carried into execution, then he had the right to act upon appearances as they presented themselves to him at the time, and if he threw the weight to protect himself from such attack, and in doing so used no more force than was necessary for that purpose, then the jury must find the defendant not guilty, although they may believe that as a matter of fact said appearances were false, and that the deceased did not intend to do him great bodily harm, and that there was no immediate danger thereof.”

Draffen & Williams for appellant.

(1) The tenth instruction, given at the instance of the state, is clearly and manifestly erroneous. Bank v. Murdock, 62 Mo. 70; State v. Elkins, 63 Mo. 159; Evans v. Ry. Co., 16 Mo. App. 522; Fath v. Hoke, 16 Mo. App. 537. (2) The court erred in permitting witnesses to state that defendant's general moral character was bad without eliciting in what particular this was so. State v. Shields, 13 Mo. 236. (3) The eleventh instruction, upon the subject of self-defence, was erroneous. Nichols v. Winfrey, 79 Mo. 544. (4) The court erred in failing to instruct the jury as to manslaughter in the second and third degrees. It was the duty of the court to give proper instructions, whether asked or not, defining each offence of which the defendant, under the evidence, could have been convicted. State v. Branstetter, 65 Mo. 149. The defendant stated that he did not intend to kill the deceased. He had the right to testify as to his intent. State v. Banks, 73 Mo. 592; State v. Tate, 12 Mo. App. 327. The jury would have been perfectly justifiable in finding, under the evidence, that there was no intention on defendant's part to kill the deceased. This might have been found from the fact that the witnesses say that he only gave the weight a jerk or sling; that he did not throw it with force. But the defendant's evidence in regard to intent must be taken into consideration in determining what instructions should be given. State v. Tate, 12 Mo. App. 327; State v. Banks, 73 Mo. 592. The defendant was not guilty of murder in either, the first or second degree, unless there was an intent to kill. State v. Gassert, 65 Mo. 352. The jury may have well found, under the evidence in this case, that the defendant did not intend to kill the deceased, and yet, that it was not justifiable or excusable homicide. If this be true, then the court should have given instructions as to manslaughter. State v. Gassert, 65 Mo. 352; State v. Branstetter, 65 Mo. 149.

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

The state introduced and the court admitted evidence to prove that defendant's character was bad. This was erroneous, as he had not put his character in issue. State v. Creason, 38 Mo. 372; State v. Williams, 77 Mo. 314. The tenth instruction as to the credibility of witnesses, does not follow the form heretofore approved by this court. State v. Dwire, 25 Mo. 554; State v. Elkins, 63 Mo. 159; Brown v. Ry. Co., 66 Mo. 599. The instruction, however, as given by the trial court, has been approved by the Supreme Court of Kansas in Campbel, v. State, 3 Kan. 488. The evidence clearly showed that the defendant was guilty, either of murder in the first or second degree, or that the killing was justifiable. Under this state of facts, the court was not authorized to give an instruction for manslaughter in any degree. State v. Kilgore, 70 Mo. 547; State v. Ellis, 74 Mo. 207; State v. Johnson, 76 Mo. 121; State v. Snell, 78 Mo. 240; State v. Jones, 79 Mo. 441; State v. Ramsey, 82 Mo. 133.

SHERWOOD, J.

Tried for murder in the first degree, defendant was convicted of murder in the second degree, and his punishment fixed at fifteen years in the penitentiary.

I. There was no error in permitting the state to introduce evidence in the first instance of the general moral character of the defendant being bad. He had offered himself as a witness, therefore, was subject to the same rules and tests, and could be impeached in the same manner as any other witness. State v. Clinton, 67 Mo. 380. Had the defendant not been a witness, then the state could not have attacked the general moral character of the defendant, unless he had first introduced evidence in his own behalf in that regard. State v. Creson, 38 Mo. 372. The only exception to the position here taken, as to a defendant being subject to same rules and tests, is that created by statute and relates to certain restrictions as to the extent to which the cross-examination of a defendant witness may go. And it was sufficient for the purpose of impeachment that the inquiry on part of the prosecution should proceed no further than to elicit from the witness that the general moral character of the defendant was bad. State v. Grant, 79 Mo. 113. If the defendant's counsel desired to descend into particulars, this opportunity was afforded them by cross-examination, and there exists on this score no ground of complaint.

II. There was error in the...