State v. Porter

• Decision Date: 16 June 1908
• Citation: 111 S.W. 529,213 Mo. 43
• Parties: STATE v. PORTER.
• Court: Missouri Supreme Court

111 S.W. 529

213 Mo. 43

STATE v. PORTER.

Supreme Court of Missouri, Division No. 2.

June 16, 1908.

1. CRIMINAL LAW — CAPACITY TO COMMIT CRIME — INSANITY.

An instruction on the defense of insanity that one partially insane may be responsible for his criminal acts, and that insanity is no excuse unless he was incapable, at the time of the commission of the act, of distinguishing between right and wrong with respect to the act, states the law correctly.

2. SAME — EVIDENCE — INSANITY.

An instruction on the defense of insanity that insanity must be established to the reasonable satisfaction of the jury, and that the burden of proving insanity rests with defendant, states the law correctly.

3. HOMICIDE — INSANITY — TEMPORARY INSANITY DUE TO DEFENDANT'S SHOOTING AT DECEASED — INSTRUCTIONS — INSANITY AT TIME OF ACT.

On a trial for murder, there was evidence that deceased, while quarreling with members of his family, including defendant, had gone out of the house, and that defendant fired a shotgun from a window, and after the gun was taken from him, got his pistol, rushed out to the place where deceased was, and fired several shots from the pistol, some of which killed deceased, on whose body were found other wounds, apparently inflicted by a shotgun. Held, that the giving of an instruction on the defense of insanity that if defendant shot at deceased with a shotgun, and immediately thereafter became temporarily insane in consequence of what he had done, then such temporary insanity would not excuse him from responsibility, was reversible error; the legal test of accountability being defendant's mental ability, at the time of the shooting, to distinguish between right and wrong with respect to the act committed.

4. CRIMINAL LAW — EVIDENCE — WEIGHT AND SUFFICIENCY — INSANITY.

Where the evidence warrants an instruction on the defense of insanity, defendant is entitled to an instruction that positive or direct testimony is not required to establish insanity, nor is it necessary to establish the defense beyond a reasonable doubt, and that it is sufficient if the jury is reasonably satisfied by the weight or preponderance of the testimony that the accused was, at the time he committed the act, incapable of distinguishing between right and wrong.

5. SAME — INSTRUCTIONS — CREDIBILITY OF ACCUSED.

A charge that the jury in determining the weight to be given to the testimony of the defendant, "if any," have a right to consider his interest, is improper, as it invites the jury not to give any weight to his testimony, and the terms "if any" should be omitted.

6. SAME — EVIDENCE — RES GESTÆ.

Declarations of accused shortly after the homicide, at the place where it occurred, that deceased "will kill us, he will kill all of us," held not admissible as part of the res gestæ.

7. SAME — EVIDENCE — INSANITY.

Declarations by accused shortly after the homicide, at the place where it occurred, that deceased "will kill us, he will kill all of us," are admissible on the issue of insanity, for the purpose of showing his mental condition at the time of the commission of the act.

8. SAME — INSTRUCTIONS.

Where declarations of accused are admitted in evidence for the purpose of showing his mental condition, it is proper to give instructions limiting the effect of the testimony.

9. SAME — EVIDENCE — INSANITY.

Oral declarations of accused tending to show his insanity may be received in evidence, whether made before or after the act in question.

10. HOMICIDE — INSTRUCTIONS — SELF-DEFENSE.

On a trial for murder the accused is entitled to instructions on self-defense and insanity, if there is evidence on which to predicate instructions on both theories of defense.

11. SAME — EVIDENCE — THREATS — REMOTENESS.

Remoteness does not affect the competency of threats made by the accused against the deceased, but merely affects the weight of the evidence.

12. CRIMINAL LAW — EVIDENCE — INSANITY.

Great latitude is allowed in the admission of evidence to prove the defense of insanity in a criminal prosecution, and everything which in some substantial way has a tendency to show that defendant's nervous organization was affected is admissible.

Appeal from Circuit Court, Clinton County: B. J. Casteel, Special Judge.

Homer O. Porter was convicted of murder, and he appeals. Reversed.

This cause is now pending in this court upon appeal by the defendant from a judgment and sentence of the circuit court of Clinton county convicting him of murder in the second degree. The name of deceased, the party charged to have been killed, was William N. Porter, and the date of the homicide is alleged to be February 17, 1906, and the weapon used is charged to have been a pistol. The deceased and the defendant bore the relation of father and son.

At the January term of the Clinton county circuit court in 1907, the defendant was put upon his trial for the offense of murder charged in the indictment. The testimony developed at the trial of this cause is quite voluminous, and we shall by no means undertake to reproduce it in detail. We have read the testimony and considered it very carefully and must be content with a brief statement of what the testimony tended to show, or at least a sufficient tendency of the showing to enable us to intelligently discuss the legal propositions presented by learned counsel representing the state and the appellant.

The evidence on the part of the state tended to show that the defendant was the son of the deceased by his second wife, and at the time of the alleged commission of the homicide was over the age of 21 years. He lived with his father, the deceased, who was a well to do farmer, living upon a farm near Plattsburg, Clinton county, Mo., which he owned and had well stocked. Some years before William N. Porter was killed, he married his third wife, who was about 20 years his junior, and took her to his home on his farm, where he, his wife, the defendant, and his brother Charles and his two younger sisters all resided. The testimony also tended to show that there was an extremely unfriendly feeling existing between the deceased and his wife, and this unfriendly feeling for several years developed into violent demonstrations on the part of the deceased to do his wife some personal harm. This unfriendly feeling, and followed by demonstrations of violence toward his wife, seemed to have originated at some of the times about a disagreement about selling the farm; the deceased wanting to sell the farm, and the wife objecting to selling it. The wife on one or two occasions declined to sign a deed that her husband would request her to sign, conveying the farm. The children — that is, the defendant and his brothers and two sisters, all of whom lived with their father and stepmother — were inclined to take the side of the stepmother in these disputes. A time or two the wife declined to sign the deed, but finally signed it under protest, and on the date of the homicide, February 17, 1907, the deceased again approached his wife and again brought up the difficulty and renewed the disagreement between them in regard to the sale of the farm. The testimony on the part of the state tends to show that all the family ate dinner at the home of the deceased at 12 o'clock on the day of the homicide, and after dinner the deceased threw the deed in his wife's lap and told her she could burn it up. His wife declined to take the deed, or to have anything to do with it, and the deceased then threw the deed in the stove. There was other testimony on the part of the state tending to show that the deceased then walked out to the hog lot, carrying a bucket of slop to his pigs, and soon started back toward the house. The two sons, Homer and Charles, were upstairs in their bedroom. The defendant got his shotgun, which was loaded with bird shot, and fired out of an upstairs window. After the firing of this shot, Charles Porter, his brother, took the gun away from him, and the defendant then got his pistol and rushed down the steps, out through the yard and into the hog lot, where his father was behind a crate and near a wood pile. After getting within a few feet of his father, the defendant fired several shots with his pistol, four of which took effect and resulted in the death of his father. Mrs. Porter, the wife of the deceased, and the two girls rushed out of the house and put their arms around the defendant and tried to get him to go into the house. Charles Porter, his brother, started off after the neighbors. Mr. Winn, Mr. McWilliams, and Mr. Grogan, neighbors, arrived shortly after the shooting and found the deceased lying near the wood pile in an apparently lifeless condition. They observed that there was a wound in his hand and several wounds in his leg, which apparently were inflicted by a shotgun. When the neighbors came, the defendant was still in the yard with his stepmother and sisters very much excited and very nervous. The defendant at that time had a pistol and shotgun in his hands. Later on in the day after the shooting, George Ryan, another neighbor, examined the wounds on the deceased's body and found one in the temple, made by a bullet from a pistol, which also showed powder burn. The neighbors persuaded the ladies to go into the house, and Mrs. Porter went to bed, and defendant also went to bed, and still appeared nervous, and a physician gave him some medicine. The state also introduced some evidence tending to show that the defendant had some time previous to this homicide threatened to kill his father.

On the part of the defendant, there was testimony tending to indicate that the defendant was impressed that his stepmother and the other children looked to him for protection against any violence on the part of his father, and there was testimony tending to show that he had prevented on other occasions his father from doing violence to his stepmother. There was also evidence tending to show that there was a very unfriendly...