State v. Rider

• Decision Date: 15 November 1886
• Citation: 90 Mo. 54
• Parties: STATE v. RIDER.
• Court: Missouri Supreme Court

90 Mo. 54

STATE

v.RIDER.

Supreme Court of Missouri.

November 15, 1886.

Appeal from Saline criminal court.

Indictment for murder. Conviction. Defendant appeals.

The Attorney General, for the State. Boyd & Sebree and Davis & Wing, for appellant, Rider.

HENRY, C. J.

At the September term, 1885, of the Saline criminal court, the defendant was indicted for murder for killing one R. P. Talent, and was tried at the November term of said court, 1885, and convicted of murder in the first degree. From that judgment he has appealed to this court.

The evidence for the state proved that he killed the deceased, and of that fact there is no question. It also tended to prove that he armed himself with a gun, and sought the deceased with the intent to kill him. The evidence tended to prove that the relations between the defendant and his wife were not of the most agreeable character, and that the deceased was criminally intimate with her, and on the day of the homicide had taken her off in a skiff to Brunswick. That defendant went in search of his wife to the residence of the deceased, armed with a shotgun, and met the latter near his residence. What then occurred no one witnessed except the parties engaged, but defendant testified as follows: “Well, me and Mr. Merrill went to this path that was leading towards the river. When we come to that path Mr. Merrill stopped, and I went on in the direction of Mr. Talent's house, to see if I could learn anything about where my wife was, and I discovered no sign of her there, and I started back north on this path, going down the slough bank. After going down some distance from the bank, I meets Mr. Talent. I spoke to Mr. Talent, and asked him if he knew where my wife was, and he made this remark, 'I have taken her where you won't find her;' and he says, 'God damn you, we will settle this right here.' He started at me with his axe, in a striking position, and I bid Mr. Talent to stop. Then he advanced a few feet, and I fired. I fired one time.” The axe of deceased found on the ground had a shot in the handle near the end furthest from the blade, and on the same side as the blade, and this evidence had a tendency to corroborate the testimony of the accused, showing that the axe was pointing in the direction from which the shot came, and was held in an upright position.

The court, for the state, instructed the jury as follows: “The court instructs the jury that if they believe from the evidence that prior to the killing of the deceased the defendant prepared and armed himself with a gun, and went in search of and sought out deceased with the intention of killing him, or shooting him, or doing him some great bodily harm, and that he did find, overtake, or intercept deceased, and did shoot and kill deceased while he was returning from the river to his home, then it makes no difference who commenced the assault, and the jury shall not acquit the defendant; and the jury are further instructed that in such case they shall disregard any and all testimony tending to show that the character or reputation of deceased for peace and quiet was bad, and they shall further disregard any and all evidence of threats made by deceased against the defendant.”

The mere intent to commit a crime is not a crime. An attempt to perpetrate it is necessary to constitute guilt in law. One may arm himself with the purpose of seeking and killing an adversary, and may seek and find him, yet, if guilty of no overt act, commits no crime. It has been repeatedly held in this, and nearly every state in the Union, that one against whom threats have been made by another is not justifiable in assaulting him, unless the threatener makes some attempt to execute his threats. A threat to kill but indicates an intent or purpose to kill; and the unexpressed purpose or intent certainly affords no better excuse for an assault by the person against whom it exists than such an intent accompanied with a threat to accomplish it. The above instruction authorized the jury to convict the defendant, even though he had abandoned the purpose to kill the deceased when he met him, and was assaulted by deceased, and had to kill him to save his own life. It does not follow, because appearances would have excused deceased had he killed the accused, that the accused had no right to defend his life against the deceased, if in fact, at the time, he had made no assault upon the deceased, and intended none. There was evidence of threats made by the...