State v. Sinclair

• Citation: 157 S.W. 339
• Parties: STATE v. SINCLAIR.
• Decision Date: 20 May 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 339

STATE v. SINCLAIR.

Supreme Court of Missouri, Division No. 2.

May 20, 1913.

1. HOMICIDE (§ 302) — HUSBAND'S RIGHT IN WIFE'S HOME — INSTRUCTIONS.

Deceased having been separated from his wife, defendant's mother, and there being evidence that she had requested him to stay away from her home, during his attempt to enter which, after defendant had forbidden his entering, the killing was done, and that because of threats of deceased she had asked defendant to protect her, the instruction that deceased had as much right to enter her home as did defendant, and that defendant had no right to forbid deceased to enter it, implying that deceased had the right to enter his wife's home without her consent, was erroneous; a wife having, under Rev. St. 1909, § 8309, exclusive control of her real estate.

2. HOMICIDE (§ 112) — SELF-DEFENSE — PROVOKING DIFFICULTY.

Defendant, who had been asked by his mother to protect her against deceased, his stepfather, from whom she was separated, and whom she had requested to stay away from her home, did not, by forbidding deceased to enter

her home, when he was attempting to do so, provoke the difficulty so as to place himself beyond the law of self-defense.

3. HOMICIDE (§ 116) — JUSTIFICATION — THREATS.

While the mere attempt of deceased to enter the home of his wife, from whom he was separated and who had requested him to keep away, did not justify defendant, her son, whom she had asked to protect her, in killing him, deceased placing his hand on his hip pocket, and saying to defendant, "Don't you move or I will kill you," in connection with prior communicated threats of deceased, justified the shooting.

4. CRIMINAL LAW (§ 815) — INSTRUCTIONS — EXCLUDING OR IGNORING EVIDENCE.

All acts of defendant at the time of the killing being admissible on the question of intention, his requested instruction that, if the first shot fired (he having fired two) killed deceased, he could not be convicted because he fired the second was erroneous.

5. CRIMINAL LAW (§ 755½) — INSTRUCTIONS — COMMENT ON EVIDENCE.

The requested instruction that, if the first shot fired (defendant having fired two) killed deceased, he could not be convicted because he fired the second was an unwarranted comment on the evidence.

6. CRIMINAL LAW (§ 728) — TRIAL — REMARKS OF COUNSEL — TIME OF OBJECTION.

Objections to improper remarks of the prosecuting attorney in argument, not being made until after the argument was closed, was not timely.

Appeal from Circuit Court, Dunklin County; Hon. W. C. S. Walker, Judge.

Albert Sinclair was convicted of manslaughter, and appeals. Reversed and remanded.

Charged with murdering his stepfather, Sam Jones, defendant was convicted of manslaughter in the fourth degree and appeals from a judgment of the circuit court of Dunklin county fixing his punishment at two years in the penitentiary.

All parties connected with this tragedy were farmers residing in the southern part of Dunklin county, Mo. In the year 1911 Sam Jones, the deceased, a man 57 years of age, was married to Mrs. M. L. Sinclair, a widow, who resided upon her own farm. She is the mother of defendant. After the marriage deceased (Jones) lived upon his wife's farm; the family consisting of deceased, his wife, Jeff Sinclair, a 14 year old son of his wife by a former marriage, and Mrs. Gargus, his mother-in-law. The defendant resided on the same farm a short distance from his mother.

About six weeks before the tragedy deceased and his wife separated; deceased establishing his home with a half-brother, named Baker, about two miles from the home of his wife. The cause of the separation is not made clear by the evidence. Deceased told one witness that he wanted to live with his wife but she would not permit him. To some witnesses he indicated that defendant was responsible for the separation, and to other witnesses he placed the blame for the separation upon Mrs. Gargus, his mother-in-law. After the separation deceased replevined a team of horses from his wife, which replevin suit was still pending when the killing occurred.

On the morning of April 22, 1912, deceased went to the home of his wife for the alleged purpose of obtaining some clothes he had left there. He took with him a small repeating rifle, which he set down outside the yard. Defendant was at the home of his mother when deceased arrived there, and when deceased started to enter the yard defendant killed him with a shotgun.

Defendant's version of the shooting is that when he saw the deceased approaching his mother's house he warned him to stay out, but deceased did not stop. Defendant then took a shotgun out of the rack, loaded it, and again told deceased not to come into the house, whereupon deceased placed his hand upon his hip pocket and said to defendant: "Don't you move or I will kill you." Defendant then shot deceased in the left side, killing him instantly. Two shots were fired, the last one when deceased was falling or after he had fallen.

There was no eyewitness to the killing, except defendant. Jones' body was found just inside the gate of his wife's yard. He had no weapon upon his person except a rock in his right hip pocket, which rock weighed about three-fourths of a pound. The coroner, a physician, gave it as his opinion that the rock was large enough with which to kill a man, but other witnesses stated that Jones had been carrying the rock a year or more "for luck," and they did not think it a dangerous weapon.

The first difficulty between defendant and deceased occurred in December, 1911, when they, with several other persons, were killing hogs. On that occasion defendant's 14 year old brother Jeff was filling kettles with water to scald hogs. Deceased and defendant were scraping hogs with knives. Defendant's brother became very negligent about his work in filling the kettles, and deceased started to slap him. At this point defendant became very angry and, sticking his knife in the ground, said to deceased: "By God, I won't stand for that." Whereupon deceased started to assault defendant with a knife, but was caught and prevented from doing so by one Bollinger, a bystander. A few hours later deceased stated to some parties with whom he was eating dinner that he was going to run his wife's farm or somebody would die.

Witness Robert Raines testified that he was at Mrs. Jones' house shortly after the separation and heard defendant state in the presence of his mother and grandmother that if deceased ever came to his house he would kill him. This threat was denied by defendant, his mother, and also his grandmother.

A few weeks before the tragedy deceased visited the home of his wife in company with a neighbor to procure an account book he had left there. Defendant was in his mother's house at the time, but at her request he left just before deceased came in.

Mrs. Jones testified that when she and deceased separated deceased told her that defendant was the cause of the separation, and that he (deceased) would kill defendant if it was the last thing he ever did; "that they could not do anything more than take him up to Kennett and hang him." Mrs. Jones further testified that she communicated the above threat to defendant; that she was afraid of deceased and had requested defendant to protect her; that, although she had furnished the money to pay for the horses which deceased had replevined, she offered to give him the horses if he would go away and let her and her family alone. Mrs. Jones' testimony was somewhat weakened by the fact that she testified at the coroner's inquest that she had not heard deceased make any threats against defendant. She admitted swearing falsely at the inquest, but stated that she did so because she was advised by two of her neighbors not to tell the coroner anything, except what happened the morning that her husband was killed. One of the neighbors admitted he gave her this advice.

Other threats were proved to have been made by deceased against defendant and some of them communicated to the latter.

Practically all the neighbors seemed to have understood that there was much animosity existing between deceased and defendant. Deceased's half-brother, Baker, with whom he was living, advised him not to go to his wife's house the morning of the killing. Ed Chailland, a cousin, with whom deceased stopped several days after the separation, and who signed the deceased's bond in the replevin suit, testified that he had advised deceased to stay away from the home of his wife, and that in response to this advice deceased gave him the "horse laugh" and said that Albert (meaning defendant) did not have nerve enough to hurt anybody.

The defendant's explanation of the killing, made in the presence of his neighbors immediately after it took place, was substantially the same as his evidence given at the trial. Defendant claimed that he had gone to his mother's house just a few minutes before Jones arrived to get some smoking tobacco which his younger brother, Jeff, told him was there. Defendant's mother testified that she saw deceased coming with a gun on his shoulder and that she went out in the garden back of the house where her mother was and therefore did not see the shooting.

A short while before the tragedy defendant was plowing in a field not far from his mother's home, and the surrounding circumstances were such that the jury might have inferred that he saw deceased approaching his mother's home and went there to drive him away or kill him. However, there was no direct evidence of that fact.

Most of the witnesses, both for the state and the defendant, testified that prior to the killing defendant bore a good reputation, except that on one occasion he deserted his wife during a short period of time.

T. R. R. Ely, of Cape Girardeau, and Fort & Zimmerman, of Kennett, for appellant. John T. Barker, Atty. Gen. (Paul P. Prosser, of Fayette, of counsel), for the State.

I. Husband's Rights in His Wife's Home....