State v. Partlow

• Citation: 4 S.W. 14,90 Mo. 608
• Parties: STATE v. PARTLOW.
• Decision Date: 31 January 1887
• Court: United States State Supreme Court of Missouri

4 S.W. 14

90 Mo. 608

STATE v. PARTLOW.

Supreme Court of Missouri.

January 31, 1887.

1. CRIMINAL PRACTICE — APPEAL — REFUSAL OF INSTRUCTION.

There is no error in refusing to give an instruction, the principle embraced in which has already been fully stated.

2. SAME — INSTRUCTIONS — DISPUTED EVIDENCE.

Defendant in a criminal case has the right to have an instruction given based on his own testimony, and that of his witnesses, although contradicted by the testimony of the prosecution.

3. HOMICIDE — INSTRUCTIONS — DEGREE.

Upon trial for murder it is error to instruct the jury that they must find the defendant guilty of murder, or acquit him altogether, if there is evidence upon which they would be justified in finding him guilty of a lower degree of crime.

4. SAME — DEGREE — PROVOKING COMBAT — INTENT.

If one provokes a combat, and in the affray has to kill his adversary in order to save his own life, the killing is not murder, but manslaughter only, if the intent with which the combat was provoked was not a felonious one.

5. SAME — SELF-DEFENSE — WITHDRAWING FROM AFFRAY.

If one, after commencing an affray, attempts in good faith to withdraw from it, but is prevented from doing so by his adversary, he will then be justified in taking the life of the latter, if necessary in order to save his own.

6. SAME — EJECTING FROM DWELLING-HOUSE — USE OF FORCE.

One entering another's dwelling-house on an implied license to do so, cannot be ejected forcibly until first requested to leave, although he misbehaves himself.

7. SAME — EVIDENCE — THREATS AGAINST THIRD PERSON.

On a trial for murder there was evidence that defendant commenced or provoked the affray, and it was claimed by the prosecution that he went to the house where the homicide was committed in order to make trouble at a wedding which was about to occur there. Held, that evidence of threats previously made by him against the groom were admissible, as well as declarations of his intention to go to the house on the day of the wedding.

8. EVIDENCE — DYING DECLARATIONS.

On a trial for murder the declaration of deceased is not admissible merely because made after being told that his wound was necessarily fatal. It must be shown that the declaration was made under a sense of impending death, or with the expectation of immediate dissolution.¹

NORTON, C. J., dissents.

Appeal from circuit court, Buchanan county.

Indictment for murder.

The following, among other instructions, was given: "If the jury believe from the evidence in the case that, on the twenty-fifth day of December last, the defendant went to the house of William J. Taylor, deceased, and while there, by any act or words of his, made himself disagreeable to said Taylor, then the said Taylor not only had the right to tell the defendant to leave his premises, but he had the right to use to defendant sufficient force to eject defendant from his premises; and if the jury believe from the evidence that said Taylor did approach the defendant, and use to him such force as was necessary to eject him from his premises, and no more, and that while said Taylor was only using such force the defendant shot him, then the plea of self-defense cannot avail the defendant in this case." The other instructions, and the evidence necessary to an understanding of the case, are given in the opinion.

The Attorney General, for respondent. M. G. Moran, T. W. Harl, and D. E. Burnes, for appellant.

SHERWOOD, J.

The defendant was indicted for the murder of William J. Taylor by shooting him with a pistol, and, being brought to trial, was convicted of the second degree of that offense, and sentenced to imprisonment in the penitentiary for 10 years. As is usual in such cases, there was a great deal of conflict in the testimony, the state making out a case which indicated that a felonious purpose actuated the defendant in visiting the house of Taylor on the day of the homicide, while the testimony on behalf of the defendant, and it would seem the weight of the testimony in the case, favored the theory that he went to Taylor's house with no other end in view but that of escorting his wife home, who was then at Taylor's, attending the wedding ceremony between Willis Bunch and Mary Reno. Against the life of Bunch it appears that threats had been made by defendant some two years before, and at frequent intervals since, almost down to the time of the homicide, which occurred the twenty-fifth day of December, 1884, and within about 10 days prior to that time.

1. The instructions of the court in regard to murder in its first and second degrees were in usual form; and the jury were in effect instructed under the evidence and law of the case, unless they could find the defendant guilty of murder in the first or in the second degree, to acquit him altogether. The eleventh instruction given at the instance of the state was as follows: "Before the right of self-defense can avail the defendant in this case, the jury must believe from the evidence not only that the defendant had, at the time he shot the deceased, reasonable cause to apprehend a design on the part of the deceased, or others aiding in concert with him, if they find others were so aiding, to do him some great bodily injury, and that he had reasonable cause to apprehend immediate danger of such design being accomplished, and that he shot deceased to avert such apprehended danger, but they must also believe from the evidence that the defendant neither sought, invited, provoked, nor commenced, by any willful act of his own, said difficulty. And if the jury believe from the evidence that there was an affray or difficulty between defendant and deceased, and that defendant voluntarily sought or invited the difficulty, or provoked or commenced it, or brought it on by any willful act of his own, or that he voluntarily and of his own free will engaged in it, then and in that case the jury is not authorized to acquit him upon the ground of self-defense; and this is true, no matter how violent his passion became, or how hard he was pressed, or how imminent his peril may have become during said difficulty." The phraseology of this instruction, as to the defendant seeking or bringing on the difficulty, is also used in instruction No. 2 given by the court of its own motion, and also in instruction No. 7 given at the instance of the state.

The defendant saved exceptions to the refusal of three instructions asked by him, as follows:

"No. 1. The court declares the law to be that homicide is justifiable whenever there is reasonable cause to apprehend immediate danger of any felonious maiming, wounding, or disfiguring being committed upon the person committing such homicide, when the same is done to prevent the execution of such felonious maiming, wounding, or disfiguring, provided at the time the deceased, or those aiding, abetting, and assisting him, made, or were about to make, such demonstrations as would induce a reasonable man to believe such danger was imminent.

"No. 2. The court instructs the jury that, even if defendant did voluntarily enter into a difficulty with deceased, still, if the jury believe from the evidence that, after said difficulty had commenced, the defendant attempted in good faith to withdraw from the difficulty, but was prevented from so doing by the deceased, then, in that event, defendant would be excused in taking the life of said Taylor, if it became necessary to do so in order to save his own.

"No. 3. Before the jury can refuse to allow the defendant the benefit of the plea of self-defense on the ground that he sought or voluntarily entered into a fight with deceased, they must believe from the evidence that defendant, at the time he so sought or voluntarily entered into a fight with deceased, he was actuated by a felonious intent to maim, wound, hurt, or kill said deceased."

As to the first of the instructions just mentioned, no error occurred in its refusal, because, aside from any other consideration, the principle embraced in it had already been fully and more properly stated in instructions 1, 6, and 7 given by the court of its own motion.

I cannot speak so favorably of the refusal of defendant's third instruction, and there are many reasons for this assertion. Although evidence on behalf of the state disclosed the existence of certain matters which, if believed by the jury to be true, would perhaps have warranted the jury in finding the defendant guilty of the highest grade of homicide, yet that on behalf of the defendant disclosed such matters as would well have warranted the jury in acquitting the defendant altogether, or in finding him only guilty of manslaughter.

In State v. Hays, 23 Mo. 287, the evidence disclosed a state of facts well covered by the third and sixth instructions there given at the instance of the state: "If the defendant, with a spade in his hand, took a position near Brown, and gradually approached him, for the purpose of inducing an altercation and getting a chance to kill him, and commenced raising his spade at the same time Brown commenced drawing his pistol, and then struck him and killed him, he is guilty of murder in the first degree; and in such case it would be no defense, even if the evidence showed that Brown drew his pistol before the defendant commenced raising his spade; for the law will not permit a man thus to induce a provocation, and so take advantage of it." "Although the jury may believe from the evidence that Brown was attempting to draw his pistol, or had it drawn at the time Hays struck, and that Hays' life or person was in imminent danger, yet, if they further believe that Hays intentionally brought on the difficulty for the purpose of killing Brown, he is still guilty of murder in the first degree." That case is a clear enunciation of the law as applicable to the state of facts disclosed by that record, — a record abounding in all the incidents of murder in the first degree, prior expressions...