State v. Pollard

• Decision Date: 25 May 1897
• Parties: STATE v. POLLARD.
• Court: Missouri Supreme Court

40 S.W. 949

139 Mo. 220

STATE v. POLLARD.

Supreme Court of Missouri, Division No. 2.

May 25, 1897.

HOMICIDE — DEFENSE OF SELF AND FAMILY — INSTRUCTIONS — APPEAL — RECORD.

1. Where defendant intruded into the home of a brother of deceased, and fired a pistol at the brother in the midst of the family, and the brother, in order to protect himself and others of the family, gave defendant a blow, whereupon defendant again fired at him, and killed deceased, the giving of the blow could not, in legal contemplation, have raised such a violent passion in defendant as to reduce what would otherwise have been murder in the first degree to manslaughter in the fourth degree.

2. Where evidence given by defendant in a murder case was simulated, and at variance with the physical facts and the testimony of all the many witnesses, he was not entitled to instructions thereon.

3. A recital of matters in a motion for a new trial is entitled to no consideration on appeal, unless supported by the bill of exceptions.

Appeal from criminal court, Buchanan county; R. E. Culver, Judge.

James Pollard was convicted of murder, and appeals. Affirmed.

The instructions referred to in the opinion are as follows: "(1) The court instructs the jury that the defendant is presumed to be innocent of the offense charged. That this presumption continues throughout the trial until overcome by the evidence beyond a reasonable doubt. If you have a reasonable doubt of defendant's guilt, you will acquit him; but a doubt, to justify an acquittal, must be a substantial doubt, founded upon the evidence, and not a mere possibility of defendant's innocence. (2) If you believe from the evidence that the defendant, James Pollard, at the county of Buchanan, state of Missouri, at any time prior to the finding of the indictment in this case, willfully, deliberately, premeditately, and out of his malice aforethought, with a pistol shot Joseph Irvin, or that defendant was attempting willfully, deliberately, premeditately, and with malice aforethought to shoot and kill one David Irvin, and that, while attempting to kill said David Irvin, he shot Joseph Irvin, from the effects of which shooting said Joseph Irvin, at said county, shortly thereafter died, then, in either case, you will find defendant guilty of murder in the first degree, and so state in your verdict. (3) Willfully means intentionally, not accidentally. In the absence of qualifying facts and circumstances, the law presumes that a person intends the ordinary and probable results of his acts. If you shall believe from the evidence that defendant, with a pistol, shot Joseph Irvin in a vital part, and killed him, you will find that the defendant intended to kill him, unless the facts and circumstances given in evidence show to the contrary. (4) Deliberately means in a cool state of blood. It does not mean brooded over or reflected upon for a week, a day, or an hour, but it means intention to kill, executed by the defendant in a cool state of the blood, in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose. Premeditately means thought of beforehand for any length of time, however short. (5) Malice, as used in the indictment, does not mean mere spite, ill will, or dislike, as it is ordinarily understood, but it means that condition of the mind which prompts one person to take the life of another without just cause or justification, and it signifies that state of disposition which shows a heart regardless of social duty, and fatally bent on mischief. Malice aforethought means that the act was done with malice and premeditation. (6) If you believe from the evidence that James Pollard, at the county of Buchanan, state of Missouri, at the time mentioned in the indictment, with a loaded pistol, willfully, premeditately, and of his malice aforethought, but without deliberation, shot Joseph Irvin, who shortly thereafter, at said county, died from the effect of said shooting, or that, at the time and place before mentioned, he willfully, premeditately, and of his malice aforethought, but without deliberation, shot at David Irvin, but actually shot Joseph Irvin, from the effects of which shooting said Joseph Irvin, at said Buchanan county, shortly thereafter died, then you will find defendant guilty of murder in the second degree, and assess his punishment at not less than ten years in the penitentiary. (7) If you believe from the evidence that the defendant shot at David Irvin while in a violent passion, suddenly aroused by a shove or blow from said David Irvin, and that such shot took effect in the body of Joseph Irvin, and killed him, then you will find defendant guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for two years, or by imprisonment in the county jail not less than six months nor more than twelve months, or by a fine not less than five hundred dollars nor more than one thousand dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months. (8) Upon the question of self-defense, the court instructs the jury that if, at the time defendant shot Joseph Irvin, he (the defendant) had reasonable cause to apprehend a design on the part of David Irvin to take his life, or do him some great personal injury, and that there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and that, to avert such apprehended danger, he shot, and that, at the time he shot, he had reasonable cause to believe, and did believe, that it was necessary for him to shoot and kill to protect himself from such apprehended danger, you will acquit on the ground of self-defense. It is not necessary for the danger to be actual or real, or that the danger should have been impending, and about to fall. All that is necessary is that defendant had cause to believe, and did believe, those facts. On the other hand, it is not enough that defendant should have so believed. He must have had reasonable cause to so believe. Whether or not he had reasonable cause is for you to determine, under all the facts and circumstances given in evidence. (9) You are instructed that flight raises the presumption of guilt. Therefore, if you believe from the evidence that James Pollard shot and killed Joseph Irvin, and, after said killing, the said James Pollard fled the country, and tried to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence. (10) The court instructs the jury that the defendant is a competent witness to testify in his own behalf, that his testimony should be considered with the testimony of other witnesses in the case; but, in determining what weight and credibility to give to his testimony, you may take into consideration the fact that he is the defendant on trial, and interested in the result thereof. (11) The jury are the sole judges of the credibility of the witnesses, and of the weight to be given to their testimony. In determining such credibility and weight, you will take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial, his relation to or feelings towards the defendant, the probability or improbability of his statements, as well as all other facts and circumstances given in evidence. In this connection, you are further instructed that, if you shall believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness' testimony."

The following is the motion for new trial: "The following grounds were given by defendant in his motion for a new trial: (1) That the court erred in admitting incompetent, irrelevant, and immaterial evidence, over the objections of the defendant. (2) That the court erred in instructing the jury upon the theory of flight to avoid arrest. (3) That the court erred in giving instructions numbered from one to eleven, inclusive. (4) That the court erred in overruling defendant's challenges to jurors B. A. Swope, Wm. Prindle, and Wm. Roedde. (5) That the court erred in not instructing the jury on manslaughter in the first, third, and fourth degrees. (6) That the court erred in permitting the court stenographer to absent himself from the court during argument of counsel. (7) That the court erred in permitting the prosecuting attorney, in his closing argument to jury, over the objections of the defendant, and without reprimand, to use the following language: `He [defendant] leaves that...