State v. Reed

• Decision Date: 19 January 1897
• Citation: 38 S.W. 574,137 Mo. 125
• Parties: The State v. Reed, Appellant
• Court: Missouri Supreme Court

38 S.W. 574

137 Mo. 125

The State v. Reed, Appellant

Supreme Court of Missouri, Second Division

January 19, 1897

Appeal from Platte Circuit Court. -- Hon. W. W. Rucker, Judge.

Affirmed.

E. C Hall, Roland Hughes, and Thos. J. Porter for appellant; J. W Beebe of counsel.

(1) The jurors, J. H. Carson, Milton Park, R. T. Murry, Henry E Williams, J. T. Price, John Woolston, D. B. Higgins, and William J. Large were not qualified jurors, and the court committed error in disallowing defendant's challenge to said jurors. State v. Cullen, 82 Mo. 623; State v. Walton, 74 Mo. 270; State v. Bryant, 90 Mo. loc. cit. 279; State v. Robinson, 117 Mo. loc. cit. 659 and 660. (2) It was error for the court to command the panel of forty to disperse and go to their homes from the twenty-third day of April till the twenty-seventh day of April. It is quite as important to defendant to keep the panel of forty together, and away from improper influences, as the panel of twelve after they are selected. (3) It was error to exclude proof of communicated threats made against Wat Reed. Defendant had the right to be judged by the appearances as they presented themselves to his mind and to repel the inference that may have been drawn from his carrying a deadly weapon. (4) The case was tried by the state upon the theory that the defendant shot and killed deceased in defense of, or in repelling an assault upon, or to prevent an impending danger to John A. Cross who was his attorney engaged in arguing his case, and not in defense of himself or his brother, Dan. Conceding that the jury might find this to be true, from the conflicting testimony, defendant asked the court to give instructions numbers 15, 19, 20, 21 as declaring the law, if they should so find, all of which was refused. And defendant excepted to the failure of the court to instruct "upon the law arising in the case, if the jury should find the fact to be that defendant acted in the defense of John Cross instead of his brother, Dan Reed." In the case of Kemp v. State, 11 Tex.App. 174 and same case 13 Tex.App. 561, the court had occasion to consider how far one might lawfully interfere in a combat between others (strangers) and ultimately take life of one combatant to save injury to the other, and in that case the court said "Whatever one may lawfully do in the defense of his own life or person the law permits him to do to protect the life or person of another." Kemp v. State, 11 Tex.App. 174; S. C., 13 Tex.App. 561. "In the first place, in the progress of the difficulty (between Bogan and Smith), Smith made an attack upon Bogan, with intent to murder or maim him, or with intent to inflict serious bodily injury upon him, the defendant was justifiable in interfering for Bogan's protection even to the extent of killing Smith at once, if it reasonably appeared by the acts of Smith, etc., * * * it was the purpose of Smith to inflict such injury." Id., page 566, par. 8; 1 Barbour's Crim. Law, pp. 60, 61; People v. Cole, 4 Park. Cr. Rep. (N. Y.) 35; Glover v. State, 33 Tex. 224; Mallicoat v. Com., 28 S.W. 151; Brace 145; 1 Hale, 4481; 4 Pa. Law Journal, 155; Wharton on Homicide, 36, 211; 1 Bishop, Crim. Law [7 Ed.], sec. 877 and notes. (5) In the eighth instruction for state the court in defining what would justify defendant, says, "If defendant had reasonable cause to apprehend and did apprehend," etc. On the other hand it is not enough that defendant should have so believed. He must have had cause to so believe, etc. But suppose the jury should find (as they might very well have found in this case), that defendant did so believe at the time of shooting, but that he did not have reasonable ground or cause to so believe. In that case the jury were left without instruction. If the jury found the two concurring, then they were told defendant was not guilty of any offense. If they found only the first he would be guilty of manslaughter, and not murder, and the court ought to have so instructed. The defendant excepted to the failure of the court to do so. Fain v. Com., 78 Ky. 183; Wharton's Crim. Law [8 Ed.], sec. 488; State v. Harrell, 97 Mo. 110; 1 Bishop, Crim. Law [7 Ed.], sec. 305 and notes; Id., sec. 874.

R. F. Walker, attorney-general, Morton Jourdan, assistant attorney-general, F. M. Wilson, prosecuting attorney, R. P. C. Wilson, M. B. Riley, and J. W. Coburn, for the state.

(1) The trial court was entitled to know the reason for the objection or challenge and defendant having failed to inform the trial court is precluded from a review of that challenge in this court. State v. Taylor, 134 Mo. 109; People v. Reynolds, 16 Cal. 128; Mann v. Glonce, 14 N. J. Law 195; Powers v. Presgroves, 38 Miss. 227; S. Pac. Co., 1 C. C. A. 416; Drake v. State, 20 A. 747; 2 Elliott, Genl. Practice, sec. 530. (2) The instructions given in the case were full, complete, and exceedingly liberal to the defendant. Instruction number 17 as to the dying declarations of the deceased was rightly refused. It singles out and attempts to comment upon the testimony and fails to tell the jury what weight these declarations were entitled to. It was not proper in form, and while telling the jury that it would not be entitled to the same weight as the witnesses' testimony, left them to conjecture and to guess how they should consider and what weight they should give them. State v. Sivills, 105 Mo. 530; sec. 4220, R. S. 1889; State v. Bell, 70 Mo. 633; State v. Harris, 59 Mo. 556. (3) Instructions numbers 15, 20, and 21 relate to the assault of Winn upon attorney Cross, and were properly refused, for: First. The defendant had no right in the defense of Cross to shoot and kill the deceased; second, there was not a particle of testimony that he shot the deceased either to prevent an assault upon Cross or in his defense. The defendant testified positively that he shot and killed the deceased in the necessary defense of his brother, Dan Reed. He does not intimate or suggest that he fired either shot in the defense of Cross, and hence there was not an iota of testimony upon which to predicate this instruction. It is a well settled principle of law in this state that no instructions should ever be given either in a civil or a criminal case which is not authorized and supported, warranted and built upon the testimony. State v. Parker, 106 Mo. 225; State v. Bulling, 105 Mo. 220; State v. McKinzie, 102 Mo. 620; State v. Herrell, 97 Mo. 106; State v. Chambers, 87 Mo. 406. (4) The giving of these instructions would have been inconsistent with the defense of the defendant; they would have been in contradiction of his positive declarations upon the witness stand. This case was presented to the jury by defendant upon the theory of a justified killing in the defense of no one except Dan Reed, defendant's brother. It should be tried in this court upon the same theory, and the defendant should not be heard to complain of the failure of the court to give these instructions, which are in violent opposition to the theory presented below. Stone v. Hunt, 114 Mo. 66; Yarnell v. Railroad, 113 Mo. 570. (5) An instruction as to manslaughter in the fourth degree was properly refused. There was no testimony that it was an involuntary killing; but, on the other hand, all of the testimony was to the effect that it was an intentional killing; hence, it is not included in section 3476, Revised Statutes, 1889. State v. McKinzie, 102 Mo. 621; State v. Pettit, 119 Mo. 410.

OPINION

Burgess, J.

At the August term, 1895, of the circuit court of Platte county the defendant was indicted for murder in the first degree, for having at said county on the sixteenth day of August, 1895, shot to death with a pistol one James Newton Winn.

Judge Herndon of the Platte circuit on being disqualified to try the case called Judge W. W. Rucker of the twelfth circuit, before whom the case was tried at the April term, 1896, of said circuit court, resulting in the conviction of defendant for murder in the second degree, and the fixing of his punishment at imprisonment in the penitentiary for the term of ninety-nine years. Defendant appealed.

The homicide was committed in the courthouse at Platte City while the circuit court was engaged in the trial of a case of replevin involving the title and possession to some hogs, in which Winn, the deceased, was plaintiff, and the defendant herein was defendant.

There had been bad blood existing between the parties for many months, and while Cross, one of defendant's attorneys engaged in the trial of that case, was addressing the jury, he severely criticized Berry Winn, the son of deceased, who had testified in his father's behalf, and charged him with having been controlled and directed while on the witness stand by telegraphic communications from his father's eyes. Cross proceeded to remark in substance: "I have raised five sons, whom I have endeavored to bring up to be honorable men, and not for all the wealth of both these litigants would I have one of them go on the witness stand and make such a spectacle of himself as that made by young Berry Winn."

About the time that Cross was concluding his criticism on the witness, Winn, deceased, who was sitting near Cross, arose to his feet and advanced toward him in an angry manner placing his left hand violently on Cross's left shoulder and at the same time striking at his head with his right. At the time of the assault upon Cross, defendant, who had been sitting ten or twelve feet from Cross, and to his left, arose, drew his pistol, and fired three shots at deceased, two of them taking effect in the body, the first and fatal shot being fired almost simultaneously with the assault by deceased on Cross.

When the first shot was fired deceased released his hold on Cross clasped his abdomen,...