State v. Pennington

• Decision Date: 07 November 1898
• Citation: 146 Mo. 27,47 S.W. 799
• Parties: STATE v. PENNINGTON.
• Court: Missouri Supreme Court

47 S.W. 799

146 Mo. 27

STATE v. PENNINGTON.

Supreme Court of Missouri, Division No. 2.

November 7, 1898.

HOMICIDE — EVIDENCE — INSTRUCTIONS — SELF-DEFENSE.

1. Evidence that accused was subject to epileptic fits, which is expressly stated to be interposed, not to prove his insanity at the time of the homicide, but to account for his conduct afterwards, is properly excluded.

2. An instruction that if defendant had reason to believe, and did believe, that deceased was about to injure him, and killed him to prevent such injury, he must be acquitted, and that the danger need not have been real, if defendant believed with good reason that it existed, but that he must have had reasonable cause to believe the danger existed, before he can be acquitted for self-defense, fully covers the law on that point.

3. When an instruction, as given, fully covers the law of self-defense, it is not error to refuse requests for other instructions on the same point.

4. If accused voluntarily entered into the altercation with deceased for the purpose of killing or injuring him, the danger in which he found himself during the altercation would not extenuate his offense.

5. The evidence showed that accused began the altercation with deceased, who was armed only with a pocketknife, which he held open in his hand at the time, and during the quarrel shot him, — he making no resistance, — and then, exclaiming that he had killed an innocent boy, shot and slightly wounded himself; that on the previous day accused had threatened to kill deceased. The defense was self-defense; accused claiming that deceased had made threats against him, and that during the altercation he tried to stab him. Held, that an instruction on murder in the first degree, in connection with instructions as to lesser degrees, was not error.

Appeal from circuit court, Morgan county; D. W. Shackleford, Judge.

Harrison H. Pennington was convicted of murder in the second degree, and appeals. Affirmed.

The defendant appeals from a judgment sentencing him to the penitentiary for 12 years for a murder in the second degree. The indictment was preferred by a grand jury of Morgan county. The defendant was duly arraigned and tried at the April adjourned term, 1897. The homicide occurred at Proctor, a small village on the Osage river, in Morgan county. On the day of the general election, November 3, 1896, the defendant, Pennington, and the deceased, Benjamin Wilson, were both in the town of Proctor. About 8 o'clock in the night of that day they met in the store of Mr. Talbott. The evidence very conclusively establishes that Pennington began the difficulty by saying to Wilson: "You have been telling around that I have been bootlegging whisky," or "selling whisky." Wilson replied that he had not. Pennington repeated that he had. Wilson again said: "I have not been telling anything of the kind. It seems like you fellows have got it in for me this evening. I am not afraid of you," — and asked Pennington: "Where is your proof?" Pennington replied: "William Irwin." Wilson asked: "Where is Irwin? Bring him here, and I will prove to you that I did not tell him that." Pennington then said: "You are a liar. You are a G____d d____n liar. You are a G____d d____n son of a bitch, you are," — and immediately began to shoot the deceased. He shot him four times. One bullet entered between the fifth and sixth intercostal space, another entered under the arm, in the axillary space, a third struck the tenth rib, and a fourth went into the muscle of the arm. Death was almost instantaneous. The deceased made no resistance. He was wholly unarmed, save with an ordinary pocketknife, the long blade of which was perhaps two inches in length. It appears that, just prior to the assault on him by defendant, the deceased had his knife in his hand, cutting a piece of bologna sausage which he was eating. This knife was found under him, with the large blade open, after his death. After shooting the deceased four times, defendant broke his revolver, and threw out the exploded shells, and reloaded it. He then started towards the door, and accosted William Irwin, and inquired if he had friends enough there to bury him. Irwin said: "I think you have," whereupon defendant said, "All right; I killed this poor, innocent boy, and I want to die with him;" and, suiting his action to his words, he shot himself, but not seriously, we judge from the result. He then stepped out of the door, and turned back, saying, "I want to go back and kiss that poor, innocent boy that I have killed." He got down on his knees, leaned over, and kissed the dead man. There was evidence that a few minutes before the shooting the deceased came into the store, passing near where defendant and one Moore were talking, and remarked, in a quiet but general way, that "nobody could run sandies on him that way"; apparently alluding to some conversation outside of the store. There was also testimony that on Sunday prior to the election, defendant had said that if Wilson, the deceased, had used the language that the defendant had heard, "he believed he would kill him." The defense was self-defense. Defendant, in his own behalf, testified that he and deceased had several conversations outside of the store on different occasions during the day of the homicide; that at the well deceased said to him, "I have got it in for you;" that he made this same speech that night, out on the porch of the store, at which time defendant says he assured deceased he never said he would hurt him. He details the occurrence in the store in this way: "Mr. Wilson, he come in again, and he walked up and got right in front of me and the cut-off in the counter. The cut-off runs straight from the east door to the north wall of the building. There is a cut-off in the west counter. What I means is, where you go behind the counter, and where you go out at the door, going between the counter. And he turned round there to me. On that, there was a word or two spoken, — I disremember what it was; and he turned round there, and he looked me right in the eyes, and he says to me, he says, `I have got no friends here, but' (he said) `you cannot run a sandy on me.' Just them very words is what he spoke; and, of course, I disremember what the conversation was after that, but it occurred pretty shortly. I disremember what it was. And when he said that, — when he says, `You can't run any sandy on me,' — the best I remember, he had his hand in his hip pocket, just this way. And he pulled his hand out of his hip pocket, and stuck it in this pocket. Q. Coat pocket? A. Yes, sir; and then he kinder turned this way, and he says again, `I don't allow no damn man to run a sandy on me;' and he drew the knife out of his pocket, in his hand. There was a light on the west counter, something near four feet in the gateway where you go between the counter from the east to the west; and that goes way on the...