State v. Sharp
| Decision Date | 02 July 1904 |
| Citation | 82 S.W. 134,183 Mo. 715 |
| Parties | THE STATE v. SHARP, Appellant |
| Court | Missouri Supreme Court |
Appeal from Monroe Circuit Court. -- Hon. D. H. Eby, Judge.
Affirmed.
J. H Whitecotton for appellant.
(1) The court erred in permitting Mrs. Dooley to answer the question asked her by the State. (2) The court erred in permitting the endorsement on the deposition of witness Everett Dooley purporting to be a certificate of Judge Moss that the prosecuting attorney declined to cross-examine the witness at the time deposition was taken. It was wholly immaterial whether the prosecuting witness was cross-examined or not, by the prosecuting attorney. The effect, however, of admitting the alleged certificate in evidence was to detract from the weight to be given to the deposition in passing upon the credibility of the witness. (3) Instructions 7a and 8 do not state the law correctly, and the jury should have been told that they must find that the defendant "brought on the difficulty or (voluntarily) entered into the difficulty," etc. State v. Gamble, 119 Mo. 427; State v. Evans, 124 Mo. 406. (4) There being no question as to there being testimony tending to show that if defendant even had an intention of "bringing on or entering into the difficulty," etc., he honestly attempted to withdraw from, and abandon the fight, and the deceased pursued him, instruction 2, given for the State, is clearly erroneous, and should not have been given unless modified to meet the testimony in the case. State v Patterson, 159 Mo. 560; State v. Cable, 117 Mo. 385; State v. Partlow, 90 Mo. 608; 1 Bishop's Criminal Law (5 Ed.), sec. 871; Harriggan & Thompson on Self-Defense, p. 227; Foster, p. 276.
Edward C. Crow, Attorney-General, and C. D. Corum for the State.
(1) In his deposition the witness had stated that the defendant was not there when he reached the place. Counsel evidently expected to argue to the jury that the deposition was an impeachment of the witness's testimony at the trial, and the offer shows that the deposition was introduced for that purpose. It could have been competent for no other purpose. It will not do for the defendant to say now that the witness was not impeached by this deposition. The effect of the deposition was to charge the witness with a recent fabrication of his testimony. And under such circumstances it is competent to sustain the witness by proof that on other occasions his statements were in harmony with those made at the trial. Wharton on Crim. Ev. (9 Ed.), sec. 492; Hobbs v. State, 133 Ind. 434; State v. Porter, 74 Ia. 623; English v. State, 30 Tex. Crim. App. 470; Sentell v. State, 34 Tex. Crim. Rep. 260; Fallon v. State, 83 Ala. 5; State v. Grant, 79 Mo. 113; State v. Hatfield, 72 Mo. 518; State v. Whelehon, 102 Mo. 17. (2) The instructions given covered all the questions of law arising in the case; but if not, an exception should have been saved at the time such failure occurred. It is too late to raise the question now. State v. Cantlin, 118 Mo. 111; State v. Vinso, 171 Mo. 576. (3) Defendant complains in his motion for a new trial of instruction 2, given on behalf and at the request of the State. We think the instruction is not liable to criticism. There was evidence tending to show that the defendant provoked the difficulty and began the quarrel with the purpose of taking advantage of the deceased, and of taking his life or doing him some great bodily harm. If this testimony was true, then there is no self-defense in the case, no matter how imminent the peril of the defendant may have become in consequence of any attack that the deceased might have made upon him. This theory was lucidly put in the instruction given and is warranted by the authorities. State v. Gilmore, 95 Mo. 554; State v. Davidson, 95 Mo. 155; State v. Partlow, 90 Mo. 608; State v. Parker, 96 Mo. 362; State v. Lewis, 118 Mo. 85; State v. Weeden, 133 Mo. 76; State v. Herrell, 97 Mo. 99. (4) Instruction 7, on manslaughter in the fourth degree, is a correct exposition of the law. State v. Vansant, 80 Mo. 67; State v. Kloss, 117 Mo. 591.
From a conviction of murder in the second degree and fixing his punishment at ten years' imprisonment in the penitentiary, under an information filed by the prosecuting attorney of Monroe county in the circuit clerk's office of said county, charging defendant with murder in the first degree in shooting and killing with a pistol one Bob Stoneking at said county on the twenty-first day of December, 1901, defendant appeals.
The killing was admitted at the trial, and the plea of self-defense interposed.
The facts are about as follows:
On the evening of December 21, 1901, twelve boys and young men, including the deceased, left the town of Stoutsville for the purpose of skating on the north fork of Salt river near Elliott's bridge in Monroe county. They left the town in a body between six and seven o'clock when it was getting dark, but on the way they divided up into two parties, one going in advance of the other.
Sometime during the afternoon of that day the defendant and one Reed Thompson had a wordy controversy over some matter and got mad, after which, it seems, Thompson made some threats against the life of defendant. Thereafter defendant provided himself with a revolver. A short time after the party left Stoutsville defendant left for his home in the sled of a friend by the name of John Lovings. Following the sled leading defendant's horse was one Wallace Fredericks. It seems that their route took them near the place where the young men who left Stoutsville for the purpose were skating, and when they saw them, the defendant and Frederick started towards them, leaving Lovings in charge of the sled and team and horse. When the defendant approached the skaters, he began shaking hands with some of them, but when he extended his hand to the deceased he declined it and remarked, "Never mind my hand; I don't forget anything in five minutes." Defendant then said, "I don't either, I guess you took up with those boys in town this evening." Deceased replied, "You are G -- d -- d -- m right, I did; I am a damn good man," and pulled off his skates. Defendant replied that he thought he was a pretty good man, and always tried to act the man. Stoneking then walked up to defendant and said, "If you want any trouble you can have it right here," to which defendant replied, "I don't want to have any trouble, go away and leave me alone." Defendant admitted that he had a pistol. When defendant admitted that he had a pistol, the deceased put his hands up in a way indicated by a witness for the State, and started toward the defendant, and said, "You damned bastard, give me that gun, and I will fix you, God damn you." Defendant then threw up his hand and fired three shots in rapid succession, from the effects of which deceased fell dead upon the ice about twenty feet from the place where he was standing when shot.
Defendant testified that while at Stoutsville on the day of the homicide he heard that Bob Stoneking had made threats against his life, and that he thought it was a dangerous place to go up that way, that is, where the skaters were, and as it was near to the road he traveled in going home he procured a pistol. That when he came near the bridge which spans the river, he and one of the friends who were with him left the main road and crossed the river below the bridge for the purpose of watering their horses, and while doing so he looked up and saw a crowd of boys and started up there. He then testified as to what occurred up to the time that deceased pulled off his skates, substantially as has been stated. He then stated that when deceased pulled off his skates he said to him, defendant, "You God damned son-of-a-bitch, if you have anything against me, we'll settle it right here." That he, defendant, then replied, "I haven't got anything against you," and he turned around and as he was starting towards me, Allen Stoneking stepped in between Bob and him, and took hold of Bob, and said something but he, defendant could not tell what Allen said, but Bob said, "Here's a God damned good place to tell it," and Allen said to Bob, "Go away and leave him alone and don't bother him." Bob pushed Allen aside, and after applying a vulgar epithet to defendant he, Bob, made a move towards defendant, when he reached down in his pocket and pulled out this gun, and said, "Yes, I have got a gun and I want you to leave me alone; I don't want to have no trouble with you anyway, and leave me alone," and he made right at me like he was going to hit me -- had his hand doubled up, and he hit at me, and I kind of glanced and throwed my arms up and he hit me on my arm, and the next time he reached right over at me and had his hand pretty near on me and says, "Give me that gun, you damned bastardly son-of-a-bitch, and I will fix you." That he thought he was aiming to strike him with something, and had to shoot him, had to defend himself; he thought he was going to kill him. That he didn't want to kill him, and shot him to keep him from killing him, defendant. He shot three times because he said he was rattled so bad he didn't know.
Such other facts will be stated in the course of the opinion as may seem to be necessary.
At the instance of the State the court, over the objection of defendant, instructed the jury as follows:
And of its own motion the court,...
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