State v. Rash, 41327.

• Court: United States State Supreme Court of Missouri
• Citation: 221 S.W.2d 124
• Docket Number: No. 41327.,41327.
• Parties: STATE OF MISSOURI, Respondent, v. CLARENCE RASH, Appellant.
• Decision Date: 13 June 1949

221 S.W.2d 124 STATE OF MISSOURI, Respondent,
v.
CLARENCE RASH, Appellant. No. 41327. Supreme Court of Missouri. Division One, June 13, 1949.

Appeal from Schuyler Circuit Court; Hon. Walter A. Higbee, Judge.

REVERSED.

Waldo Edwards and Jayne & Jayne for appellant.

The court erred in overruling defendant's demurrer to the evidence and motion for directed verdict filed at the close of the evidence on behalf of the state, and again filed at the close of all of the evidence in the case for the reason that the state wholly failed to establish the commission of the crime charged or the corpus delicti of the charge and the evidence of defendant did not supply the missing elements. The only evidence produced at the trial conclusively showed that the act committed by defendant was either justified or excusable under the circumstances, and that no crime was committed. There was no competent evidence upon which the jury could find the defendant guilty of the crime charged. State v. Meidle, 202 S.W. (2d) 79; State v. Meadows, 51 S.W. (2d) 1033.

J.E. Taylor, Attorney General, and David Donnelly, Assistant Attorney General, for respondent.

The court did not err in overruling appellant's motion for a directed verdict at the close of the state's evidence and at the close of all the evidence. State v. Kelly, 107 S.W. (2d) 19; State v. Willhite, 159 S.W. (2d) 768; State v. Bray, 246 S.W. 921; State v. Morgan, 56 S.W. (2d) 385; State v. McDonald, 231 S.W. 927; State v. Wheat, 95 S.W. (2d) 1165; State v. Wilson, 34 S.W. (2d) 98.

DOUGLAS, J.

Defendant appeals from a conviction of manslaughter upon which he was given a two-year sentence.

One of his principal contentions on appeal is the state failed to prove a crime because the state's evidence itself established that the killing was justifiable in lawful self defense. Ordinarily self defense is in the nature of an affirmative defense, and a question for the jury. But whether the state's evidence, which is neither disputed nor contradicted, established self defense so as to make a killing justifiable homicide instead of murder or manslaughter is a question of law for the court. We find the state itself proved the killing was justifiable in self defense, and hold that the court should have directed a verdict of acquittal.

Defendant was charged with killing his brother-in-law. Bryan Mullinax, by stabbing him with a knife. There were no

221 S.W.2d 125

witnesses to the stabbing except defendant's wife. As the means of proving its case the state called as its own witness the defendant's son who related in evidence his father's confession to him about killing the deceased. His testimony for the state was not contradicted or disputed in any detail either by the state's other evidence or by the defendant's evidence.

These facts were adduced by the son's testimony. Defendant operated a saw mill. He and his wife were living temporarily at Downing while defendant was cutting lumber there. Bryan Mullinax, his brother-in-law, lived with them. He had worked for defendant off and on for 15 or 20 years. He never had kept a steady job. Defendant supported him, giving him money and clothing. At Downing the defendant, his wife, and deceased occupied two adjoining rooms in a residence. Defendant and his wife used one for their bedroom, deceased slept in the other. The rooms were connected by a doorway between.

Deceased was younger and stouter than defendant. He was 54 years old, about 5 feet, 10 inches tall, and weighed from 175 to 190 pounds. Defendant was 59 years old, about 5 feet, 6 inches tall, and weighed from 145 to 150 pounds.

On December 11, 1947 defendant and deceased had been out together. Deceased had been drinking. When intoxicated he would become quarrelsome. Defendant had seen deceased uptown earlier in the evening and tried to get him to go home but deceased refused, so defendant went on home. It was after midnight when they later returned home together.

Deceased went directly into the house. Defendant went in about ten minutes later. Defendant entered the house through the deceased's room where deceased was sitting on his bed. He went through the connecting door into his room where his wife was in bed, turned on the light and started to remove his clothes. Deceased said to him: "I don't like the way things are going on. I am going to leave." Defendant told him to go on back to bed. But deceased started toward defendant's bedroom saying, "Before I go I am going to beat your God-damed head in." When he reached the middle of the bedroom defendant's wife jumped out of bed. Deceased kept advancing so defendant's wife stepped between the two men. Deceased then struck out over the wife's shoulder hitting defendant, and all three fell to the floor. Defendant was on the bottom, on his back. Deceased kneeled on defendant, and had his hands on defendant's throat, choking him. Defendant was frightened. He thought he would be choked to death. He believed it was his life or deceased's. While deceased was kneeling on him, grasping his throat, he eventually removed his pocket knife from his pocket. He opened it and stabbed deceased a number of times on the left side of his neck and body until he freed himself from...