State v. Sloan

• Decision Date: 31 March 1871
• Citation: 47 Mo. 604
• Parties: THE STATE OF MISSOURI, Defendant in Error, v. GEORGE SLOAN, Plaintiff in Error.
• Court: Missouri Supreme Court

47 Mo. 604

THE STATE OF MISSOURI, Defendant in Error,

v.GEORGE SLOAN, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1871.

S. M. Chapman, for plaintiff in error.

I. It was error to exclude evidence of Moore's threats and conduct before the affray, and in holding that all threats and demonstrations made by him more than three days before the affray were too stale to be given in evidence, although communicated before the shooting; and that all such as had not been communicated were inadmissible, however recent. (Campbell v. People, 16 Ill. 17; Dukes v. State, 11 Ind. 557; Cornelius v. Commonwealth, 15 B. Monr. 539; Howell v. State, 5 Ga. 54-5; Keener v. State, 18 Ga. 224-9; Lingo v. State, 29 Ga. 484; Stewart v. State, 19 Ohio, 306; Pitman v. State, 22 Ark. 356, and cases cited; Dupree v. State, 33 Ala. 380; Howell v. State, 5 Ga. 54; Monroe v. State, 5 Ga. 85, 121; Cornelius v. Commonwealth, 15 B. Monr. 539; Roscoe's Crim. Ev., 6th ed., 710.) The cases of The State v. Jackson, 17 Mo. 544, and State v. Hays, 23 Mo. 287, are not in point.

II. Defendant had tried to avoid his adversary, but all to no purpose; and when he saw the danger imminent, he was justified in acting more promptly in his defense, and upon less demonstrations of hostility, than though his fears had not been aroused by Moore's threats and prior conduct. (State v. Hicks, 27 Mo. 588; People v. Rector, 19 Wend. 569; Selfridge's Trial, 160; Phillips v. Commonwealth, 2 Duvall, 328; Pattison v. People, 46 Barb. 625; Granger v. State, 5 Yerg. 459; 1 Bish. Crim. Law, § 384; Young v. Commonwealth, 6 W. P. D. Bush, 312; Campbell v. People, supra; 2 Whart. Crim. Law, 4th ed., § 1027, note; Howell v. Commonwealth, 2 Duvall, Ky., 228.)

III. The court should have admitted evidence of Moore's declarations to his surgeons, while engaged in extracting the ball and dressing the wound, made immediately after the affray, “that Sloan was not in fault, that he had drawn on the difficulty by attacking him,” as part of the res gestæ. (Commonwealth v. McPike, 3 Cush., Mass., 181; King v. Foster, 6 Car. & P. 325; Aveson v. Kinnaird, 6 East, 197; Travelers' Ins. Co. v. Mosley, 8 Wall. 397; Rawson v. Hugh, 2 Bing. 104; Starkie's Ev., Sharswood's ed., 89; People v. Durant, 13 Mich. 351; Marr v. Hill, 10 Mo. 320; Walde v. Perryman, 27 Mo. 279; Hanover R.R. Co. v. Coyle, 55 Penn. 396.)

IV. 1. The court erred in instructing the jury upon the law of manslaughter in the first degree, there being in the case no evidence tending to show the defendant guilty of that offense. (Franz v. Hilderbrand, 45 Mo. 121; Webster College v. Taylor, 35 Mo. 268; Harper v. Indianapolis & St. Louis R.R. Co., 44 Mo. 488; State v. Rose, 32 Mo. 346.) It was the duty of the court to declare the law as applicable to the grade or grades of homicide which the evidence tended to prove, and to have confined its instructions to such grade or grades. (State v. Rose, 32 Mo. 346; State v. Jones, 20 Mo. 58, 64; State v. Dunn, 18 Mo. 419; State v. Jecko, 44 Mo. 234, 236.) 2. The court should, after instructing the jury that they could convict for manslaughter in the first degree, have declared the law defining that offense, as requested by the defendant, that “manslaughter in the first degree, as applicable to this case, is where the killing is without a design to effect death, by the act, procurement or culpable negligence of the defendant while engaged in the perpetration or attempt to perpetrate a crime less than a felony.” It is said by the court in Crawford v. State, 12 Ga. 142:“Whenever there is any doubt as to the grade of the offense, it is the duty of the court clearly and distinctly to instruct the jury as to the law defining the several grades of homicide, and then to leave them to find from the evidence of which particular grade the defendant is guilty.” (See Davis v. State, 10 Ga. 109.) The jury was, in this case, in substance, instructed that they could convict for manslaughter in the first degree; but an instruction asked by the defendant defining that offense was refused. This was error. This instruction, which was asked by the defendant to meet the effect of the one given for the State, embodied a correct exposition of the law of manslaughter in the first degree, as applicable to the facts of this case, and should have been given, so far as it related to that offense, whatever may be thought as to the technical accuracy of some other portions of the instruction. 3. The court should have instructed the jury as asked by the defendant upon the law of self-defense and justifiable homicide. Upon the law defining justifiable homicide the defendant requested the court to declare that “homicide is deemed justifiable when committed in resisting an attempt to kill such person, or when committed in his or her lawful defense, when there shall be reasonable cause to apprehend a design to do him or her some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished. And in deciding the degree of homicide to be imputed to the defendant, and whether he had or had not reasonable cause to apprehend such immediate danger to exist at the time of shooting, all the circumstances connected with the shooting, together with the conduct and situation of the deceased at the time, and immediately prior thereto, are proper subjects for the consideration of the jury.”

(See Wagn. Stat. 446, § 4.) This instruction was important to have enabled the jury to determine whether the homicide for which the accused was on trial was not by the evidence brought within the pale of justifiable homicide, and should have been given, although some of the language used may not have been the most appropriate or happy.

Leonard, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted in the Circuit Court of Dunklin county for the murder of one Charles A. Moore. The indictment was in the usual form for murder in the first degree, and a change of venue having been awarded to Cape Girardeau county, a trial was there had, and he was convicted of manslaughter in the first degree.

The exclusion of evidence offered by the defendant, the giving and refusing of instructions and the finding of the jury are the matters complained of.

The evidence shows that Moore, the deceased, entertained the greatest ill-feeling toward the defendant, whom he accused of slandering him; that he had made threats on various occasions that he would kill him; that he commenced to make these threats some weeks before, and continued to make them to within less than an hour of being shot, when he stated, while belting on his pistol and going in the direction of the defendant, that he “was going to kill George Sloan.” At the time of the killing the defendant had just come to town, and Moore immediately sought him out, and got into an altercation with him; the defendant started to leave, and Moore followed him with his revolver buckled on his person; defendant then turned round, saying to Moore, “don't follow me,” and immediately fired the shot from the effects of which Moore died in a few days thereafter.

The court rejected all the evidence of threats made by the deceased more than three days previous to the shooting as being too stale and remote, and also refused to admit in evidence those threats which had been made just prior to the killing, and which had not at that time been communicated to the defendant. What length of time must elapse after threats are made, and under what circumstances they are to be received in evidence, is not very definitely fixed or clearly settled.

In The State v. Jackson, 17 Mo. 544, it was held that evidence of threats was not admissible if sufficient time had elapsed for the blood to cool. But that case is so entirely different in its features from this that it can be regarded as of very little authority here.

In the case of The State v. Hays, 23 Mo. 287, it appeared from all the evidence that the prisoner was the aggressor, and had sought the difficulty in which the deceased was killed. This court refused to reverse the judgment of conviction for murder, because the court below rejected evidence of threats made by the deceased against the prisoner, the records not showing whether the threats were recent or of long standing.

Of the propriety and justice of the decision upon the facts as developed in that case, there can be no doubt. At what time the threats were made did not appear, and the murdered man was not trying to execute his threats, or commit any offense, when the prisoner met and killed him. A threat antecedently made would of course furnish no justification or palliation for a homicide under such circumstances. The books contain examples in which the threats of the deceased party have been given in evidence, and there are also cases in which such threats have been rejected. But where such threats have been received they were generally recent, or continued down, so as to become very nearly coeval with the killing, and were brought home to the knowledge of the party slaying. (See Levin's C. C. 184; Rosc. Crim. Ev. 772; Rector's case, 19 Wend. 569.) But the judge who delivered the opinion of the court in Hays' case distinguishes it from that class of cases where the threats are made and continued down to the time of the killing. Thus, in speaking of the case of Monroe v. State, 5 Ga. 85, 135, 136, he says: “In the case of Monroe v. State of Georgia, the facts were widely different from the facts in this case. There the threats against the life of Monroe, coupled with the acts of Macon, were brought down to the time of killing. The deceased, at his death, was armed with a yaeger and two pistols; he had been watching and seeking the opportunity to kill Monroe. He had created such a dread of losing life in Monroe's mind that, although a physician, he was compelled to practice his profession by visiting his patients in...