State v. Smith

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

65 S.W. 270

164 Mo. 567

THE STATE v. SMITH, Appellant

Supreme Court of Missouri, Second Division

November 12, 1901

Appeal from Lawrence Circuit Court. -- Hon. Henry C. Pepper, Judge.

Affirmed.

Thomas F. T. Whitney, Thomas J. Delaney and William B. Skinner for appellant.

(1) There was evidence, in addition to that of defendant, tending to prove that the deceased began the difficulty which resulted in his death. There being such evidence, evidence of the previous quarrel between the defendant and deceased, and evidence of threats by deceased against defendant, whether expressed in plain and direct language or couched in vague phrases and inuendoes, and whether communicated to defendant or not, and whether near to or remote from the time of the killing, is admissible for the following purposes: first, as throwing light upon the action of the deceased at the time of the encounter; second, as having direct bearing upon the reasonableness of the grounds upon which defendant acted third, as tending to show as well as sustain the charge that the attack or demonstration toward the attack was first made by the deceased. State v. Sloan, 47 Mo. 604; State v. Elkins, 63 Mo. 159; State v Alexander, 66 Mo. 162; State v. Adams, 76 Mo 355; State v. Grant, 79 Mo. 113; State v. McNally, 87 Mo. 650; State v. Wright, 141 Mo. 333. (2) Instruction 1, defining murder in the first degree, requires the jury to find the facts beyond a reasonable doubt, and instruction 10 declares "That the defendant is presumed innocent of the offense charged" (not of any offense), "and before you can convict him the State must overcome that presumption by proving him guilty beyond a reasonable doubt," but nowhere is there an instruction on reasonable doubt in connection with the instruction on murder in the second degree or on the whole case. The fact, therefore, that the doctrine of reasonable doubt is mentioned in connection with murder in the first degree, emphasizes its absence from the instructions declaring the law of murder in the second degree. State v. Martin, 124 Mo. 514; State v. Wingo, 66 Mo. 181, 187; State v. Gonce, 79 Mo. 600. (3) So, while instruction 8 concludes by directing the jury to find the defendant guilty of murder in the first degree, yet if it is not a correct declaration of the law of first degree murder, it is error in this case, as the elements of murder in the second degree are all specifically enumerated in said instruction, and the jury are told that the evidence is sufficient to prove these elements if they can satisfactorily and reasonably infer their existence. This is error, because no instruction was given on the doctrine of reasonable doubt, either on the whole case or on the charge of murder in the second degree. So, also, the instruction leaves the jury to grope in the darkness or guess at what will, in law, amount to "sufficient reason or cause or extenuation." State v. Forsythe, 89 Mo. 671; State v. Hickman, 95 Mo. 329; State v. Owens, 79 Mo. 619; State v. Sprague, 149 Mo. 422. (4) Instruction 2, under the evidence of this case, is erroneous: first, because the question whether or not the billiard cues used were deadly weapons was not submitted. State v. Harper, 69 Mo. 425; second, because the question whether or not defendant intended to kill should have been submitted, as there can be no murder in the second degree without a specific intent to kill, unless it appears that a deadly weapon was used from the use of which the law presumes an intent to kill if the act be done willfully and maliciously. State v. Kelley, 85 Mo. 144; State v. Wieners, 66 Mo. 11; State v. Wilson, 98 Mo. 440. (5) Instruction 9 is erroneous, misleading, vague, incomplete and prejudicial in this: First, the language, "If the jury believe from the evidence that the defendant did not have reasonable cause to believe, they can not acquit him on the ground of self-defense, although they may believe the defendant really thought that he was in danger," should have been followed by the declaration that the hypothetical facts would only justify a conviction of manslaughter in the fourth degree. Under these instructions the jury might well have found defendant guilty of murder in the second degree, and yet believe that he acted honestly although mistakenly. The honest belief that he was in danger negatives all malice and reduces the crime to manslaughter in the fourth degree, and the jury should have been so instructed in plain and unambiguous language, nor does anything in the instructions 5, 6 and 7 cover this point or cure this omission. State v. Curtis, 70 Mo. 594; State v. Edwards, 70 Mo. 480; State v. Harris, 73 Mo. 287; State v. McKinzie, 102 Mo. 620. Second. So, this instruction justifies defendant only in the event the jury believe that he had reasonable cause to believe it necessary to kill Watson. Suppose it was not necessary to kill, or suppose he did not strike with intent to kill, yet if it was necessary to strike to protect himself and more force was used than was necessary, death resulting; or if death resulted without intent to kill, he does not forfeit his right of self-defense. In other words, to avail one's self of the plea of self-defense it is surely not necessary that in defending himself he must intend to kill (which this instruction expressly declares). (6) Instructions 11 and 12 are not only erroneous but are highly prejudicial in this: they take from the jury the consideration of all threats whether communicated or not and whether recent or remote, until, independently of such threats, the jury believe that the deceased provoked or began the difficulty. This is not the law. If the evidence at any stage raises the question whether or not deceased provoked or began the difficulty, then evidence of threats communicated or uncommunicated become admissible to aid the jury in determining whether or not the defendant did in fact provoke or begin the difficulty, as well as to show the nature of the attack and intention of deceased.

Edward C. Crow, Attorney-General, for the State.

(1) Instruction 11 can not be fairly construed to intimate to the jury that such threats might not be considered by them for any legitimate purpose in the case. 160 Mo. 123; 95 Mo. 484. This court has repeatedly held that although the deceased may have made threats, if he made no attempt to execute any previous threat, said threats will constitute no excuse or justification for slaying him, because it is not the law that a threatened man may hunt the threatener and slay, him because of the threat. Therefore, instruction 11 properly told the jury that if, at the time defendant struck and killed deceased, deceased was not assaulting or attempting to assault defendant or provoking a difficulty, then prior threats by deceased afford no justification for killing him. State v. Eaton, 75 Mo. 592; State v Harris, 73 Mo. 287; State v. Taylor, 64 Mo. 358; State v. Hays, 23 Mo. 287; State v. Elkins, 63 Mo. 163; State v. Spencer, 160 Mo. 123. Instruction 12 told the jury the purpose of the communicated threats, i. e., to "determine whether defendant was justified in acting on appearances," when he struck deceased. They were not told that they could not consider such threats for any other purpose, but if Wilson provoked the difficulty, they were competent for the purpose named. Threats alone would not have justified defendant in killing Watson. Indeed, if defendant provoked the difficulty, there was no self-defense in the case, but if Wilson provoked it, then the threats were competent to consider whether defendant had cause to believe himself in danger, certainly if there were no appearances to act on. If Watson had not provoked the difficulty -- which he did not -- defendant could not, merely because he had heard of his threats, go and kill him. If so, to justify homicide, all we need to do is to have some one communicate a threat to us. 2 Bishop's Criminal Procedure, sec. 619, p. 272; State v. Gilmore, 95 Mo. 554; State v. Starr, 38 Mo. 270; Whart. on Hom., 197. (2) While it is true the character, conduct and utterances of the defendant and the deceased and their relations to each other, tending to show their feeling and the motives, if any, for the commission of the crime, are admissible, yet as to prior fights, the rule is that details of a previous difficulty between the same parties will only be admissible if both are so connected that one is of the res gestae of the other; otherwise, not. 2 Bishop on Criminal Procedure, sec. 662. The length of the interval between the two is immaterial. The law is that while the fact of a prior difficulty or fight having occurred is competent, the irrelevant particulars thereof between the defendant and the deceased can not be shown. 2 Bishop's Criminal Procedure, sec. 630; Tarver v. The State, 43 Ala. 354; Pound v. State, 43 Ga. 88; McLean v. State, 16 Ala. 672; State v. Clayton, 100 Mo. 520; State v. Parker, 96 Mo. 389; State v. Jackson, 95 Mo. 623; State v. Tabor, 95 Mo. 585. The evidence of former difficulty was some six months before the killing, and was not sufficiently recent to be competent. Kelley Cr. Law and Pro., sec. 251, p. 159; State v. Tasterman, 68 Mo. 408. (3) The argument that the instruction on reasonable doubt does not cover the whole case is not true, as it clearly instructs the jury that "If they have a reasonable doubt of defendant's guilt you must acquit him" not of murder in the first degree only, but acquit -- which language covers the whole case -- every crime with which defendant is charged. The rule is that where one instruction is given on reasonable doubt it is not error to omit it from another instruction. State v. Wright, 141 Mo. 334. (4) Instructions seven and eight both submit to the jury the question of...