State v. Price

• Decision Date: 31 January 1905
• Citation: 84 S.W. 920,186 Mo. 140
• Parties: STATE v. PRICE.
• Court: Missouri Supreme Court

84 S.W. 920

186 Mo. 140

STATE v. PRICE.

Supreme Court of Missouri, Division No. 2.

January 31, 1905.

CRIMINAL LAW—HOMICIDE—SELF-DEFENSE—INSTRUCTIONS —BILL OF EXCEPTIONS—SPECIAL VENIRE—MISCONDUCT OF PROSECUTING ATTORNEY —REVIEW.

1. Error in overruling a motion by accused for a special venire, being matter of exception, cannot be reviewed on appeal, where the bill of exceptions does not show that any such motion was made or overruled, though the record proper disclosed the overruling of the motion, but failed to show that any exception was taken thereto.

2. In a prosecution for homicide, an instruction that if, at the time of the stabbing of deceased, defendant had good cause to believe and did believe that deceased, either alone or with others, was about to kill defendant or to do him great bodily harm, and that it was necessary to stab deceased to prevent such apprehended danger, the jury should acquit on the ground of self-defense, was not objectionable as limiting defendant's right of self-defense to assaults made by deceased alone, and as leaving out of consideration defendant's right to use a weapon, if necessary, to protect himself from others acting in concert with deceased.

3. An objection that instructions were not sufficiently broad cannot be urged on appeal where accused did not call the court's attention thereto at the trial and request further instructions.

4. Misconduct of prosecuting attorney in using improper language in argument cannot be reviewed where the language complained of is not incorporated in the bill of exceptions.

Appeal from Circuit Court, McDonald County; H. C. Pepper, Judge.

Harvey Price was convicted of murder in the second degree, and he appeals. Affirmed.

White, Clay & Sheppard, for appellant. E. C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

BURGESS, P. J.

On the 12th day of January, 1904, the defendant, Price, was convicted in the circuit court of McDonald county of murder in the second degree, and his punishment fixed at 10 years' imprisonment in the State Penitentiary, under an information filed by the prosecuting attorney of said county in the office of the circuit clerk of said county charging him with murder in the second degree by stabbing and killing with a knife one Dick Friend. After unavailing motion for a new trial, defendant appeals.

The homicide occurred at a picnic held near Coy, a small village in McDonald county, on the 22d day of August, 1903. The defendant and the deceased attended this picnic. Before going to the picnic grounds they went to a drug store in Coy, where some of them became slightly intoxicated. The defendant is shown to have made threats against the deceased at various times during the day. In the afternoon, about 4 o'clock, the defendant, together with some companions, was at a stand, eating a lunch, and the deceased and his friends came up. Some angry words passed between them, and a general fight ensued. The evidence of the state clearly shows that the deceased made the statement to the defendant at the time he was approaching him that he did not want to fight, and kept backing away. The defendant kept slapping him with his hand, and finally cut him with his knife. The evidence on the part of the defense, however in this respect, is materially different, in that several witnesses testified that a general mix-up ensued, in which the defendant was thrown to the ground, and various of his opponents jumped upon him; that he was beaten over the head and back with clubs,...