State v. Roberts

• Citation: 217 S.W. 988,280 Mo. 669
• Parties: THE STATE v. WILLIAM L. ROBERTS, Appellant
• Decision Date: 26 January 1920
• Court: Missouri Supreme Court

217 S.W. 988

280 Mo. 669

THE STATE v. WILLIAM L. ROBERTS, Appellant

Supreme Court of Missouri

January 26, 1920

Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.

Reversed and remanded.

Bruton & Hulett, Frank G. Harris and M. R. Conley for appellant.

(1) The court erred in giving Instruction 12 for the reason that it erroneously set forth the law as applied to the facts in this case in the following particulars: (a) Said instruction thus stated the law of th quantum of force and resistance defendant was justified in using. This proposition is stated in the instruction in the language: "Nor is any one justified in using any more force than is necessary to get rid of his assailant." This statement of the law without qualification has been condemned by this court. State v Hollingsworth, 156 Mo. 186; State v. Harper, 149 Mo. 527; State v. Rose, 142 Mo. 428; State v. Palmer, 188 Mo. 568. (b) Said instruction also erroneously stated the following propositions of law "But on the other hand the law does not permit a person to voluntarily seek or invite a combat or put himself in the way of being assaulted in order that when hard pressed he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right of attack and it will not follow in any case where the difficulty is sought for and induced by the party by any willful act of his, or where he voluntarily and of his own free will enters into it . . . So if you believe from the evidence in this case that the defendant Roberts voluntarily sought or invited the difficulty in which Ryland lost his life, or that he, defendant, provoked or commenced or brought it on by any wilful act of his own, or that he voluntarily and of his own free will engaged in it, then in that case you are not authorized to acquit him on the ground of self-defense." This instruction was erroneous for the reason that it omitted to state the intent with which the defendant must have voluntarily entered into or put himself in the way of a difficulty, which must be for the purpose of committing a violent act, and has been condemned in the following cases: State v. Gilmore, 95 Mo. 554; State v. Stilts, 97 Mo. 120; State v. Cable, 117 Mo. 380; State v. Gamble, 119 Mo. 427; State v. Sharp, 233 Mo. 269, 292. (2) The court erred in refusing defendant's Instruction D. This instruction was framed to present defendant's theory of self-defense and the issues of law involved in it necessary to be applied to the facts in the case. The following portions of it are particularly relevant and pertinent and were not embodied in any other instructions in the case: "In this connection you are further instructed that the law did not require the defendant to retreat or to wait until said Ryland actually attacked him but that he could use any means for his own protection that appeared reasonably necessary under the circumstances." See authorities, supra.

Frank W. McAllister, Attorney-General, C. P. Le Mire, Assistant Attorney-General, for respondent; Don C. Carter of counsel.

(1) Under the facts in this case, it was unnecessary for the court to instruct on any phase of the law of self defense. Wharton on Homicide (3 Ed.), secs. 319-328; Bush v. State, 40 Texas Crim. 539; Henry v. People, 198 Ill. 162; State v. Evans, 124 Mo. 410; State v. Evans, 128 Mo. 412; State v. Hudpseth, 150 Mo. 32; State v. Patterson, 159 Mo. 561; State v. Feely, 194 Mo. 322; State v. Eastham, 240 Mo. 249; State v. Larkin, 250 Mo. 245; State v. Miles, 253 Mo. 438. Where the statements of the defendant are contradicted by all the other evidence, and the physical facts, and are unreasonable and inconsistent with the experience of mankind, the court is not bound to instruct the jury in regard thereto. State v. Tucker, 232 Mo. 18; State v. Arnold, 206 Mo. 600; State v. King, 203 Mo. 571; State v. Vaughan, 200 Mo. 22; State v. Fraga, 199 Mo. 136; State v. Hamilton, 170 Mo. 377; State v. Holloway, 161 Mo. 144; State v. Hancock, 148 Mo. 488. (2) Under the evidence in this case Instruction 12 was sufficient, and furnishes no basis for reversible error. State v. Eastham, 240 Mo. 249; State v. Feely, 194 Mo. 322; State v. Patterson, 159 Mo. 561; State v. Partlow, 90 Mo. 608; State v. Darling, 202 Mo. 172; State v. Gilmore, 95 Mo. 554.

WILLIAMS, J. Goode, J., concurs; Blair, J., concurs in a separate opinion, in which Woodson and Graves, JJ., join; Walker, C. J., dissents in a separate opinion, in which Williamson, J., joins.

OPINION

In Banc

WILLIAMS J.

Upon an information charging him with the crime of murder in the first degree, defendant was tried in the Circuit Court of Boone County, found guilty of murder in the second degree and his punishment fixed at twenty years' imprisonment. Defendant has duly perfected an appeal.

The evidence may be summarized as follows:

William L. Roberts (hereinafter referred to as appellant), about eight o'clock a. m., July 30, 1917, killed, by firing in rapid succession both barrels of a double-barreled shotgun, one William A. Ryland (hereinafter referred to as deceased).

Appellant and deceased for many years prior to and up to the time of the tragedy lived on adjoining farms as friendly neighbors. Early on the morning of the homicide the deceased and one Charles Palmer, a colored farm-hand, went down to a feed lot on deceased's farm for the purpose of feeding hogs and unloading some shelled corn. The feed lot was about one-half mile from deceased's farm house, and approximately one-eighth mile from defendant's farm house. While deceased and his helper were unloading the shelled corn some of appellant's turkeys came over near the feed lot. At about the same time some of appellant's boys were seen by the deceased. The deceased thereupon told his helper to go over and tell appellant's boys to tell appellant that he (deceased) desired that the turkeys be kept out of the hog lot until he had finished fattening the hogs. The colored farm-hand did as he was instructed, and the appellant's boys delivered the message to the appellant. In a few minutes appellant went down to the hog lot. After some discussion concerning the turkeys, each called the other a liar, and deceased threw a neckyoke at appellant. Appellant hurriedly went away in the direction of his home, saying he would return shortly. He kept his promise, and in a few minutes returned with a double-barreled shotgun, and after more discussion and while deceased was in the act of climbing the wire fence, with an ax in his hand, appellant fired in rapid succession both barrels of the shotgun, inflicting the wounds from which the deceased shortly thereafter died.

The appellant and the colored farm-hand are the only living witnesses to the tragedy. The farm hand testified for the State, and the appellant testified in his own behalf. There is some conflict in their testimony. The farm hand, testifying for the State, related the occurrence as follows:

"Well, he [appellant] came down and he says, 'What kind of word is that?' and he said to me, 'I don't want you to be chumping my turkeys' and I said, 'Mr. Roberts, I would not hurt your turkeys, I just merely throwed a little stick along behind them to hurry them along,' and Mr. Ryland said, 'I don't think he has been chumping your turkeys,' and he [appellant] said, 'You are a liar.' . . . Mr. Ryland just reached down and picked up a neck-yoke and threw it at Mr. Roberts, and Mr. Roberts broke and run away from the fence then, and he [appellant] says, 'I will be back in a few minutes.'" Appellant went away in the direction of his house and in a short time was seen returning. The deceased said to the witness, "Yonder comes Mr. Roberts back." The witness raised up and saw that appellant had a gun and the witness said to deceased, "What in the world is he going to do?" and deceased said, "I guess he is going to mean business." That appellant came up within about twenty-five steps of deceased and stopped between two trees and addressing deceased said, "Now, you son-of-a-bitch, if you want to get a neck-yoke, get a neck-yoke, and I will show you that I am game." Thereupon "Mr. Ryland picked up an old ax and walked up kind of to the fence and said, 'You're on my premises,' and he [deceased] kind of raised his foot up like he was going to step up on the wire [fence], and Mr. Roberts said, 'I mean business,' and then, "Boom! Boom!" The deceased fatally wounded turned and walked a few feet and sat down on a plank. The appellant broke his gun for the purpose of removing the shells and walked back towards his home.

Appellant, testifying in his own behalf, stated that he and deceased had been good friends for many years prior to this trouble and that two or three times prior thereto the colored farm-hand told appellant's children to keep the turkeys away, and that the children did their best to do so. The day before the tragedy appellant's daughter told him that she had seen the colored man clubbing the turkeys, "trying to kill them." Early on the morning of the tragedy, appellant's boys came to him and told him that the colored man had just told them that deceased "did not want to catch them [the turkeys] on his side of the fence any more." Appellant told his boys that he would go down and see the deceased and that he didn't believe the word the colored man had sent, because the deceased had told appellant a few days before that "the turkeys weren't bothering to amount to anything and that he wasn't kicking." Appellant then went down to where the deceased and the colored man were at work, and after exchanging friendly greetings they talked several minutes about the crops and the weather and the scarcity of water. Appellant then related what occurred as follows:

"Well I...