State v. Patterson

• Decision Date: 12 February 1901
• Citation: 159 Mo. 560,60 S.W. 1047
• Parties: STATE v. PATTERSON.
• Court: Missouri Supreme Court

60 S.W. 1047

159 Mo. 560

STATE v. PATTERSON.

Supreme Court of Missouri, Division No. 2.

February 12, 1901.

HOMICIDE — SELF-DEFENSE — COMMENCING QUARREL — INSTRUCTIONS.

An instruction that, if defendant sought or voluntarily entered into a difficulty with deceased, which resulted in the killing of the latter, he cannot be acquitted on the ground of self-defense unless he withdrew, or attempted to withdraw, from the difficulty before he fired the fatal shot, is erroneous, since the right of self-defense is not lost by commencing a quarrel unless with intent to do great bodily harm or commit murder.

Appeal from circuit court, Pemiscot county; Henry C. Riley, Judge.

Theodore R. Patterson was convicted of murder in the second degree, and he appeals. Reversed.

John E. Bell and R. M. Darnall, for appellant. Edward C. Crow, Atty. Gen., for the State.

SHERWOOD, J.

The trial of defendant in this cause for murdering Milos Johnson by shooting him with a pistol resulted in a verdict of guilty of murder in the second degree, and affixing as punishment imprisonment in the penitentiary for the term of 23 years. There are no briefs or assignments of error filed by defendant, nor are briefs filed on part of the state, nor has the cause been argued, nor is the bill of exceptions indexed. There was sufficient support in the evidence for the verdict. No instructions were asked by defendant, but he excepted to all given for the state, 13 in number. No 12 of the series reads this way: "The court further instructs the jury that, if you believe from the evidence that the defendant, Theodore Patterson, sought or voluntarily entered into a difficulty with the deceased, Milos Johnson, which resulted in the shooting and killing the said Milos Johnson, you cannot acquit the defendant on the ground of self-defense, unless you shall further find from the evidence that the defendant withdrew, or attempted to withdraw, from the difficulty, before he fired the fatal shot." This instruction is given in plain disregard of numerous decisions of this court. A man does not lose his right of self-defense by beginning the quarrel, unless he does so for the purpose of doing his adversary great bodily harm, or else effecting his death. If he provoke the quarrel without such felonious intent, intending merely an ordinary battery, the final killing in self-defense would only be manslaughter in the fourth degree. In such cases the right of self-defense would be of an imperfect nature,...