State v. Parker

• Decision Date: 30 June 1891
• Citation: 17 S.W. 180,106 Mo. 217
• Parties: The State v. Parker, Appellant
• Court: Missouri Supreme Court

17 S.W. 180

106 Mo. 217

The State v. Parker, Appellant

Supreme Court of Missouri, Second Division

June 30, 1891

Appeal from Buchanan Criminal Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

H. S Kelley for appellant.

(1) The court erred in refusing to continue or postpone the trial. McKay v. State, 12 Mo. 492; Rice v Melendy, 36 Iowa 166; State v. Lewis, 74 Mo 222; State v. Walker, 69 Mo. 274; State v. Loe, 98 Mo. 609. Sickness of counsel is good ground for continuance. State v. Bailey, 94 Mo. 311; Thompson v. Thornton, 41 Cal. 626; State v. Stegner, 33 N.W. 340; Stockholm v. State, 7 S.W. 338. When leading counsel is sick, and counsel in attendance is not prepared to go on with the trial, a continuance should be granted. Shultz v. Moore, 1 McLean, 520; Allen v. State, 10 Ga. 85; Rhode Island v. Mass., 11 Pet. 226; 3 Am. & Eng. Ency. of Law, 808. When counsel has not had time to prepare a defense he believes there is in the case, a continuance should be granted. State v. Deschamps, 7 So. 133; 41 La. Ann. 1051; Price v. People, 23 N.E. 639; Blackman v. State, 76 Ga. 288. The absence of counsel, by virtue of a prior engagement, when there appears no want of due diligence on the part of the party applying, is good ground for continuance. Russell v. Gardner, 3 W.Va. 531; Hill v. Clark, 51 Ga. 122. Judge Kelley was absent by reason of a prior engagement. The fact that the case has been in court a long time is no reason for a refusal of a further continuance, when the party applying is not chargeable with delay. Hooper v. Memphis, 19 Ga. 85. Undue haste generally retards the final consummation of the object in view. It seems to have been so in this case. (2) It should be stated in the instructions that if the defendant brought on the difficulty which resulted in the death of the deceased, with intent to kill him or do him great bodily harm, if opportunity offered, he could not shield himself on the ground of self-defense. But, on the other hand, if he (actuated by passion or actual or fancied provocation as many men are) began or entered into a quarrel or difficulty, intending no more than a fist-fight or a battery, and during the course of the difficulty he had reasonable cause to believe, and did believe, that he was in immediate danger of death or great personal injury, and acted upon such belief, the fear and belief caused by the circumstances under which he acted repelled the inference of malice, which is an essential ingredient of murder in either degree, and his offense, in killing his adversary, is no more than manslaughter in the fourth degree. State v. Partlow, 90 Mo. 608; State v. Berkely, 92 Mo. 41; State v. McDaniel, 94 Mo. 301; State v. Gilmore, 95 Mo. 554; State v. Davidson, 95 Mo. 155; State v. Parker, 96 Mo. 382; Adams v. People, 47 Ill. 376; Horrigan and Thompson, Self-Defense, 227, note; State v. Stiltz, 97 Mo. 20; State v. Herrell, 97 Mo. 105; Chapman v. Com., 15 S.W. 50. (3) To justify a homicide the danger need not be actual; if the accused acted on a reasonable appearance and belief of danger, it is sufficient, although there was not, in fact, any danger. Tiller v. State, 24 Tex. 251; De Arman v. State, 71 Ala. 351; Jordan v. State, 11 Tex.App. 435; Lamar v. State, 64 Miss. 428; Guice v. State, 60 Miss. 714; State v. St. Geme, 31 La. Ann. 302; State v. Eaton, 75 Mo. 586; State v. Elliott, 90 Mo. 350; State v. Davidson, 95 Mo. 155; State v. Hardy, 95 Mo. 455; State v. Rose, 92 Mo. 201; State v. Downs, 91 Mo. 19. (4) The action of the court in refusing time in which to prepare and file bill of exceptions was not only erroneous, but was most arbitrary, oppressive and reprehensible. Bryans v. State, 15 S.W. 288, and cases cited; 2 Thompson on Trials, sec. 2809, et seq.; State v. Reed, 67 Mo. 36; Ohmes v. State, 49 Wis. 415; State v. Harding, 1 Wall. Jr. 137; Woolfolk v. Tate, 25 Mo. 598; Cocker v. Cocker, 56 Mo. 180.

John M. Wood, Attorney General, for the State.

(1) The continuance was properly refused. Jacob v. McLean, 24 Mo. 40; Greer v. Parker, 85 Mo. 107; State ex rel. v. Griffith, 63 Mo. 545, and cases cited; State v. Bailey, 94 Mo. 311; Roberts v. People, 9 Col. 458; Walton v. State, 79 Ga. 446; Parker v. State, 81 Ga. 332; People v. Goldenson, 76 Cal. 328; 3 Am. & Eng. Ency. of Law, 808, and notes. (2) Instruction, numbered 7, given on the part of the state, upon the question of self-defense, was approved by this court when the case was here before. State v. Parker, 96 Mo. 382; State v. Gilmore, 95 Mo. 554; State v. Partlow, 90 Mo. 608. (3) Instruction, numbered 1, asked by defendant and refused, was embraced in numbers 7 and 16, given on the part of the state, and was properly refused. State v. Walton, 74 Mo. 270; State v. Smith, 80 Mo. 516. (4) In view of the facilities afforded to appellant, he has not shown due diligence, and has no cause to complain of the action of the court in refusing to extend the time for filing the bill of exceptions, even if it be conceded that that question is a matter subject to review by this court.

OPINION

Macfarlane, J.

This is the second appeal of defendant from a conviction for murder in the second degree for killing David C. Montgomery. The first appeal is reported in 96 Mo. 383. The case was retried with the same result as upon the first trial. The plea was again self-defense. A number of errors are assigned which will be considered in their order.

I. Defendant's first complaint is, that the court improperly refused to grant him a continuance. The ground of the application was that the attorneys who had attended to his defense on all former trials, and in the supreme court, and who were familiar with all the facts were unable to attend to his defense on account of the press of other important business. On the eleventh of March he employed another attorney, J. S. Crosby, who was then sick but thought he would be well in time to prepare for trial. His attorney so employed had not sufficiently recovered to attend to his case, and he could not now secure the services of counsel who could prepare for and proceed with the trial at that term of court. The application was made on the eighteenth day of March, 1889, and overruled. On the twenty-second of March, Hon. H. S. Kelley, a partner of Crosby, appeared for defendant and requested a postponement for two weeks, which was also denied. On the twenty-sixth the trial was commenced, Hon. H. S. Kelley and J. S. Crosby appearing for defendant, though the latter was still in delicate health.

The granting or refusing a continuance, particularly for causes not enumerated in the statute, is largely a matter within the discretion of the circuit court, and nothing but its abuse will warrant this court in interfering with its exercise. "When a party seeks to substitute the discretion of this court for that of the court below, and to give relief under circumstances which, in the discretion of that court, do not entitle him to it, he must present a strong case, -- " Scott, J., in Jacob v. McLean, 24 Mo. 40. State v. Maguire, 69 Mo. 197; State v. Walker, 69 Mo. 274; Greer v. Parker, 85 Mo. 107; State v. Griffith, 63 Mo. 545; State v. Bailey , 94 Mo. 311, 7 S.W. 425.

We can see no arbitrary or unreasonable exercise of the discretion of the court in denying a continuance on the grounds alleged in the application. There had already been two jury trials of the case, in one of which, at least, the evidence had been preserved by bill of exceptions. The questions of law had been mostly settled by the decision of this court in the former appeal. But little time was, therefore, required in which to get a full understanding of the case. The application was made on the eighteenth of March, and the trial was not commenced until the twenty-sixth of the same month. Defendant was represented in the trial by counsel of great experience and distinguished ability. Nothing prejudicial to defendant on account of the denial of the continuance appears. No sufficient cause is shown for our interference with the discretion of the trial court.

II. Defendant next objects to the seventh instruction given by the court. This instruction tells the jury in substance, if defendant brought on the difficulty, and in so doing was actuated by a felonious intent to kill deceased, or to do him some great bodily harm and during the progress of said difficulty, did shoot and kill him, then the jury cannot acquit on the ground of self-defense. To this the court adds the following: "But although the jury believe from the evidence that the defendant began the quarrel or provoked the difficulty with the deceased, yet if they also believe, from the evidence, that this was done by defendant without any felonious purpose, and that thereupon the deceased attacked him and compelled him, in order to save his own life, to take that of the deceased, still the law, while it will not entirely justify the homicide on the ground of self-defense, will hold the defendant guilty of no higher grade of crime than that of manslaughter in the fourth degree. The word felonious, as used in this instruction, means wickedly and against the admonition of the law -- unlawfully."

We can see nothing in this instruction or omission therefrom of which the defendant can justly complain. Full benefit is given him of the liberal rule declared in Partlow's case, 90 Mo. 608, and followed in the subsequent cases of State v. Gilmore, 95 Mo. 554, 8 S.W. 359; State v. Parker, 96 Mo. 382, 9 S.W. 728, and State v. Berkley, 92 Mo. 41, 4 S.W. 24.

We are unwilling to extend the rule of self-defense one step further than has been done in that laid down in those cases, and acted upon by the criminal court in the trial of this case. One who voluntarily brings on, seeks or provokes a difficulty, in the progress of...