State v. Sovern
| Decision Date | 12 February 1910 |
| Citation | 125 S.W. 769,225 Mo. 580 |
| Parties | THE STATE v. CHARLES SOVERN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. E. E. Porterfield Judge.
Affirmed.
J. M Cole and Lowrance & Casey for appellant.
(1) The court erred in overruling defendant's application for a continuance. The application complied fully with every requirement of the statutes. R. S. 1899, sec. 2600; State v. Anderson, 96 Mo. 241; State v. Farrow, 74 Mo. 531. (2) The court erred in not permitting the defendant to show the threats made against him and his wife by the prosecuting witness the same day of the difficulty. State v. Sloan, 47 Mo. 604; State v. Keene, 50 Mo 357. (3) These threats were admissible to show the character and strength of the feeling which prompted them. Sher-wood Com. on Criminal Law of Mo., pp. 14-15; State v. Dickson, 78 Mo. 438; State v. McNally, 87 Mo. 650; State v. Bryant, 55 Mo. 75; State v. Downs, 91 Mo. 19; State v. Foley, 12 Mo.App. 431; State v. Alexander, 66 Mo. 148. (4) The court erred in sustaining the prosecuting attorney's objection to the evidence of L. E. Moody. This was material evidence and admissible for the purpose of showing the violent and turbulent disposition of the complaining witness, and to affect his credibility made so by statute, R. S. 1899, sec. 4680. State v. Blitz, 171 Mo. 530; State v. Thornhill, 174 Mo. 364; State v. Spivey, 191 Mo. 111; State v. Hensack, 189 Mo. 312. (5) The court erred in giving instruction 6 on the part of the State over the objections of the defendant. Threats made by the assaulted (or deceased as the case may be) against the defendant so near the time of the difficulty as to characterize the conduct and motive of the injured party in the rencounter may be shown as bearing upon the question whether the defendant acted in self-defense, whether said threats were communicated to the defendant or not. In case at bar these threats were all communicated to the defendant. State v. Sloan, 47 Mo. 604; State v. Keene, 50 Mo. 357; State v. Harris, 59 Mo. 550; State v. Evans, 65 Mo. 574; State v. Harrod, 102 Mo. 609.
Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
(1) Defendant did not complain of the information in the lower court. It is not subject to criticism, either in form or substance. It is an almost exact copy of a form heretofore approved. State v. Prosser, 137 Mo. 625; State v. Mulhall, 199 Mo. 205. (2) The information as filed, according to the transcript of it in the record proper, was in no need of the amendment alleged by the bill to have been made. (3) The statute expressly authorized the amendment of the information and provides the remedy in case of surprise. Defendant took no steps to show "good cause" for delay. Sec. 2481, R. S. 1899; State v. Emerson, 188 Mo. 413. (4) Instruction 6 to the effect that threats made by Lander against defendant should be disregarded if the jury found that when shot Lander was making no hostile, or apparently hostile, demonstrations, is sound. State v. Spencer, 160 Mo. 123; State v. Harris, 59 Mo. 552. The instruction tells the jury that if they believe that at the time the shooting occurred Lander was "not assaulting, or attempting to assault defendant, or making any hostile or apparently hostile demonstrations," then the threats proved are not to be considered at all. If Lander was not making any "hostile or apparently hostile demonstrations against defendant," then the defendant had no "reasonable ground to believe" that he was in danger, and his whole theory of self-defense crumbled. The threats were competent only in connection with the evidence tending to show self-defense. State v. Westlake, 159 Mo. 679.
The defendant in this cause has brought his case to this court by appeal from a judgment of the circuit court of Jackson county, Missouri, convicting him of an assault with intent to kill one Frank W. Lander. The information as amended, which was duly verified, upon which the defendant was tried, omitting formal parts, thus charges the offense against the defendant:
"Now comes Isaac B. Kimbrell, prosecuting attorney for the State of Missouri in and for the body of the county of Jackson, and upon his oath informs the court, that Charles Sovern, whose Christian name in full is unknown to said prosecuting attorney, late of the county aforesaid, on the 6th day of March, 1908, at the county of Jackson, State of Missouri, in and upon one Frank W. Lander, feloniously, willfully, on purpose and of his malice aforethought did make an assault; and the said Charles Sovern with a certain weapon, to-wit, pistol loaded with gunpowder and leaden balls, then and there feloniously, willfully, on purpose and of his malice aforethought did shoot off at, against and upon the said Frank W. Lander then and there giving to the said Frank W. Lander in and upon the head and body of him the said Frank W. Lander with the pistol aforesaid two wounds, with the felonious intent then and there him the said Frank W. Lander, feloniously, willfully, on purpose and of his malice aforethought to kill and murder against the peace and dignity of the State."
During the course of the opinion we will give attention to the legal propositions suggested by counsel for appellant as to the amendment of the information and the arraignment and re-arraignment of the defendant upon the charge preferred against him.
Upon the trial of this cause the testimony introduced by the State substantially tended to prove that the defendant and one Lander, the prosecuting witness, were, at the time of the assault, and for sometime prior thereto had been, competitors in business on East Fifteenth Street, Kansas City, Missouri. They occupied adjoining buildings. On the afternoon of March 6, 1908, Lander was standing in front of his place of business engaged in conversation with an insurance agent, when defendant emerged from his store and ordered Lander to "get away from there." Lander told defendant he was "not bothering him." Defendant at once drew his pistol and commenced firing. Lander had made no demonstration of any kind. The first and fourth shots went wild, the second passed through the back of Lander's neck, and the third, fired while Lander was retreating, struck him in the back near the left shoulder blade, inflicting a dangerous wound. Lander was unarmed. There was also evidence tending to show that defendant, on previous occasions, had threatened to kill Lander, and that immediately before the shooting he came into his store, after passing Lander on the walk, declared that "if he comes over on my place I will shoot him," procured a pistol from his desk, stepped out near where Lander was standing and, after the conversation detailed above, began firing.
The evidence on the part of the defendant tended substantially to show that the prosecuting witness had frequently, in conversation with third parties, threatened defendant's life, accompanying his threats with opprobrious epithets. These threats were communicated to defendant. Defendant and his wife testified to numerous threats made by Lander against defendant's life in their presence. They also testified that Lander, at various times, applied indecent epithets to Mrs. Sovern. Defendant's account of the shooting is, in substance, that earlier in the day a difficulty had occurred between Lander and defendant. As a result of this and previous difficulties, defendant, after consulting his attorney, concluded to move across the street, and was engaged in moving when the shooting occurred. He had been down in the city on some errand in the afternoon, and upon his return was informed by his wife that Lander had been cursing her during his absence. Defendant procured his pistol, went out where Lander was, and told him to get off his (defendant's) place. Defendant declared that Lander responded to this by saying, "Go to hell, you Irish son-of-a-bitch," and "ran his hand in his pocket like he was going to pull a gun, and I pulled a gun and shot him." Defendant testified that the reason he shot was he thought Lander was going to shoot him. With respect to Lander's effort to draw a pistol, defendant was corroborated by his wife, and to some extent by his step-son. Defendant, when asked to explain his shooting Lander in the back, replied: "How did I know but what he was going to turn and do some more." At one point in his cross-examination, when asked why he shot Lander, he answered, Asked then if he shot because he "didn't want Lander lurking around his place," he replied, "He had cussed me and my wife and my whole family, and I didn't think he had any business running my business while I was down town." Defendant denied having threatened Lander. He explained a statement made shortly after the shooting, to the effect that Lander had shot at him first, by saying he was so nervous at the time that he "hardly knew what happened."
Defendant offered evidence that Lander's general reputation for peace, quietude, honesty and veracity was bad, and that his own was good.
In rebuttal the State offered evidence to the effect that Lander's general reputation for truth and veracity, peace and quietude was good.
Other evidence in rebuttal was to the effect that defendant, at the time of making the statement referred to, just after the shooting, was under the influence of liquor. Lander denied the threats against defendant...
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