State v. Smith

• Decision Date: 12 November 1901
• Citation: 164 Mo. 567,65 S.W. 270
• Parties: STATE v. SMITH.
• Court: Missouri Supreme Court

65 S.W. 270

164 Mo. 567

STATE v. SMITH.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

MURDER — SELF-DEFENSE — THREATS — EVIDENCE — CHARGE — DEADLY WEAPON — BILLIARD CUE.

1. Where, on a trial for murder, the defense is self-defense, and the evidence is conflicting as to who was the aggressor, evidence of prior threats of violence made by deceased is admissible as bearing on the reasonableness of the grounds on which defendant acted.

2. Where, on a trial for murder, defendant claimed that he acted in self-defense, and eight witnesses have testified to threats made by deceased, it is not reversible error to exclude further testimony of the same character.

3. Where, on trial under an indictment for murder in the first degree, the court charged that: "Defendant is presumed to be innocent of the offense charged. Before you can convict him, the state must overcome that presumption by proving him guilty beyond a reasonable doubt. If you have a reasonable doubt of defendant's guilt, you must acquit him," — the use of the words "of the offense charged" does not limit the requirement of proof of guilt beyond a reasonable doubt to murder in the first degree, but applies to all offenses of which defendant could be convicted under such indictment.

4. A charge that if defendant, under circumstances specified, struck and killed deceased with billiard cues, defendant should be found guilty of murder in the second degree, is not objectionable as not leaving to the jury the question as to whether the billiard cues used were deadly weapons, when that question is fully submitted in other portions of the charge.

5. When, in the charge, the court has defined "willfully" as "intentionally," a charge that defendant should be found guilty of murder in the second degree, if, under specified circumstances, he "willfully" struck and killed deceased, is not erroneous because the word "intentionally" is not used.

6. When defendant claimed self-defense, a charge that "if the jury believe from the evidence that the defendant did not have reasonable cause to believe, they cannot acquit him on the ground of self-defense, although they may believe he really thought he was in danger," is not error.

7. Evidence of threats made by deceased, but not communicated to defendant, is not admissible when defendant was unquestionably the aggressor in the affray in which deceased was killed.

Appeal from circuit court, Lawrence county; Henry C. Pepper, Judge.

Rel Smith was convicted of murder in the second degree, and appeals. Affirmed.

Thos. F. T. Whitney, Thos. J. Delaney, and Wm. B. Skinner, for appellant. E. C. Crow, Atty. Gen., for the State.

BURGESS, J.

At the August term, 1900, of the circuit court of Lawrence county, the defendant was convicted of murder in the second degree, and his punishment fixed at 40 years' imprisonment in the penitentiary, for having theretofore at said county assaulted and killed one Henry Watson with a billiard cue. Defendant appeals.

The difficulty occurred in a saloon building in which there were three rooms, in Aurora, Lawrence county, Mo. The building stands east and west. The middle room was occupied for a bar, and the back or east room for a billiard room. The evidence showed that the deceased, Watson, was playing billiards, and that defendant came to the door leading into the billiard room, when Watson said to him that he did not want any trouble with him, and for him to go away; that he (Smith) had followed him around all day; to which Smith replied, "You son of a bitch, I can whip you any time." When this remark was made, defendant pulled a rock out of his pocket, and said to Watson, "You son of a bitch, I will fix it with you," and threw the rock at Watson, but missed him. There was evidence which tended to show that at this juncture Watson was rushing upon defendant with an open knife in his hand, when defendant took a billiard cue from a rack near by, and struck Watson several times over the head, breaking the cue into fragments. He then got another, and broke it over his head also, inflicting injuries from which Watson died the following day. The evidence upon the part of the state, however, tended to show that Watson had no knife at the time of the difficulty, and that defendant was the aggressor.

The court, of its own motion, instructed the jury as follows: "(1) The court instructs the jury, if they shall find and believe from the evidence beyond a reasonable doubt that the defendant, Rel Smith, on or about the 24th day of March, 1900, at the county of Lawrence and state of Missouri, did willfully, feloniously, deliberately, premeditatedly, and with malice aforethought strike and wound Henry Watson with billiard cues, and if the jury further believe from the evidence that within a year and a day thereafter, to wit, on or about the 26th day of March, 1900, the said Henry Watson, at the county of Lawrence and state of Missouri, died in consequence of said wounding and striking with the billiard cues aforesaid, the jury will find the defendant guilty of murder in the first degree, as charged in the indictment. (2) If the jury believe from the evidence that the defendant, on or about the 24th day of March, 1900, at the county of Lawrence and state of Missouri, feloniously, willfully, premeditatedly, and of his malice aforethought (but without deliberation as defined in these instructions), struck and killed Henry Watson with billiard cues, then the jury should find the defendant guilty of murder in the second degree, as charged in the indictment, and assess his punishment at imprisonment in the penitentiary for a term of not less than ten years. (3) The court instructs the jury that the term `feloniously,' as used in the instructions means wickedly, and against the admonition of the law. `Willfully' means intentionally, not accidentally. `Deliberately' means in a cool state of the blood. It does not mean brooded over or reflected upon for a week or a day or an hour, but it means an intent to kill, executed by the defendant in a cool state of the blood in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose, and not under the influence of a violent passion suddenly aroused by some reasonable provocation. `Premeditatedly' means thought of beforehand for any length of time, however short. `Malice' does not mean mere spite or ill will or dislike, as it is ordinarily understood, but it means that condition of the mind which prompts one person to take the life of another without just cause or excuse, and it signifies a state of disposition which shows a heart regardless of social duty, and fatally bent on mischief. `Malice aforethought' means that the act was done with malice and premeditation. (4) If the jury believe from the evidence that the defendant provoked the difficulty or began the quarrel with the purpose of taking advantage of Watson, and of taking his life, or of doing him some great bodily harm, then there is no self-defense in the case, however imminent the peril of defendant may have become in consequence of an attack made upon him by Watson; and if, in such circumstances, the jury believe that the defendant struck and killed Watson, then the defendant is guilty of murder in the first degree, and the jury should so find. (5) If the jury believe from the evidence that Henry Watson made an assault upon the defendant with a knife, and attempted to take his life, or do him some great bodily harm, and that the defendant, in resisting such attempt, unnecessarily took the life of said Watson, then the jury will find the defendant guilty of manslaughter in the second degree, and assess his punishment at imprisonment in the penitentiary not less than three nor more than five years. (6) The court instructs the jury, if they believe from the evidence that the defendant, on or about the 24th day of March, 1900, at the county o. Lawrence and state of Missouri, struck and killed Henry Watson in a heat of passion, without a design to effect death, but in a cruel or unusual manner, but not under such circumstances as to justify him upon the ground of self-defense, then the jury should find him guilty of manslaughter in the third degree, and assess his punishment at imprisonment in the penitentiary not less than two nor more than three years, or by imprisonment in the county jail not less than six nor more than twelve months, or a fine not less than five hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months. (7) The court instructs the jury, if they believe from the evidence that the defendant, without the design to effect death, and while in the heat of passion, struck Henry Watson with billiard cues, and that said billiard cues were not dangerous and deadly weapons, then the jury should find the defendant guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for two years, or by imprisonment in the county jail not less than six months nor more than twelve months, or by a fine not less than five hundred dollars, or by both a fine not less than one hundred dollars and imprisonment in the county jail not less than three months. (8) The court instructs the jury that he who willfully uses upon another at some vital part a deadly weapon must, in the absence of qualifying fact, be presumed to know that the effect is likely to be death, and, knowing this, must be presumed to intend death, which is the probable and ordinary consequence of such an act; and, if such deadly weapon is used without just cause, he must be presumed to do it wickedly, or from a bad heart. If, therefore, the jury believe from the evidence that the defendant took the life of Henry Watson by striking him in a vital part with billiard cues, and that said billiard cues were dangerous and deadly weapons, with a manifest design to use...