State v. Stallings
| Decision Date | 20 December 1930 |
| Docket Number | No. 30618.,30618. |
| Citation | 33 S.W.2d 914 |
| Parties | THE STATE v. L.C. STALLINGS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. — Hon. Frank Kelly, Judge.
REVERSED AND REMANDED.
Abbington & Abbington, R.L. Dearmont and A.M. Spradling for appellant.
(1) The unintentional killing of a bystander by a random shot fired in self-defense is excusable. 30 C.J. 88; Johnson v. State, 288 S.W. 223; Caraway v. State, 263 S.W. 1063; Spanell v. State, 203 S.W. 357. (2) Instructions 1 and 5 purported to cover the entire case, and required the jury to find appellant guilty of either murder in the first degree, or murder in the second degree, but if the jury failed to do its duty in this respect, then it could further perform its duty by finding appellant not guilty. These instructions denied to appellant the right of self-defense, and the court committed error in giving them. State v. Jones, 273 S.W. 732; State v. Gabriel, 256 S.W. 767; State v. Helton, 234 Mo. 559; State v. Davis, 12 S.W. (2d) 427. (3) Instructions 1 and 5 are in conflict with Instruction 6. If the jury followed Instructions 1 and 5, it could only convict of murder in the first or second degree, or acquit appellant. Instructions 1 and 5 did not take into account the right of self-defense, but ignored this right. These instructions were conflicting and misleading, and the court committed error in giving them. See cases supra. (4) Instruction 6 is erroneous because it required the jury before it could acquit on the ground of self-defense, to find that appellant had reasonable cause to apprehend some great bodily harm, and that such danger was imminent and impending, and that it was necessary for appellant to use his revolver in the way he did in order to protect himself. This instruction was erroneous (a) because it told the jury that to warrant an acquittal, the danger must in fact be imminent and the shooting necessary, and (b) it denied the appellant the right of self-defense. State v. Jordan, 268 S.W. 71; State v. Hollingsworth, 156 Mo. 187. (5) The evidence disclosed that deceased was killed by appellant while shooting at one Hagan. Appellant had been knocked down twice by Hagan, being struck both times on the head, his eyes were partly closed and he was addled. This evidence shows that the shooting was done in the heat of passion, aroused by adequate provocation, and that consequently the trial court erred in refusing instruction on manslaughter, as requested. State v. Carey, 282 S.W. 25; State v. Recke, 278 S.W. 998; State v. Rennison, 267 S.W. 852; State v. Harp, 267 S.W. 846; State v. Canton, 222 S.W. 450; State v. Turner, 246 Mo. 610; State v. Wilson, 242 Mo. 501; State v. Heath, 221 Mo. 580; State v. Darling, 199 Mo. 197. (6) The failure of the court to give necessary instructions in felony cases, without request or exception by appellant, is good cause for new trial. State v. Conway, 241 Mo. 290; State v. Connor, 252 S.W. 718. (7) William Ludwig and J.H. Bowers were not qualified jurors, and should have been excused by the court. Each had formed fixed opinions as to the guilt or innocence of appellant, and had expressed their opinions freely between the date of the homicide and the trial. In answer to a question of the court, Ludwig stated that he had an opinion that the appellant wilfully, deliberately, premeditatedly, on purpose and of his malice aforethought killed the deceased. Bowers stated that he had obtained his information from a friend, who was present at the time of the shooting; that he had known this friend for thirty years; that he was an honest and truthful man; and that he would believe anything he told him. In view of all that these witnesses stated, the court refused to excuse them and thereby committed error to the prejudice of this appellant. State v. Hultz, 106 Mo. 41; State v. Foley, 144 Mo. 600; Barnett v. Levee Dist., 125 Mo. App. 61.
Stratton Shartel, Attorney-General, and G.C. Weatherby, Assistant Attorney-General, for respondent.
(1) The court did not err in overruling the challenge for cause to the juror William Ludwig. This juror revealed that he had read newspaper reports of the shooting from which he had formed and expressed an opinion as to the guilt or innocence of the defendant. While he said that it would take evidence to remove that opinion, yet he repeatedly stated in answer to questions propounded to him by the court that he would be governed by the testimony given in the case and not by what he read in the newspaper. That he would require the State to prove the defendant guilty beyond a reasonable doubt, and he would be governed by the court's instruction on self-defense. In view of these statements of the juror he was competent, and the denial of the challenge for cause was proper. State v. Walton, 74 Mo. 270; State v. Samis, 296 Mo. 471; State v. Ashbrook, 11 S.W. (2d) 1037; State v. Smith, 228 S.W. 1057. (2) The court did not err in denying the challenge for cause to juror J.H. Bowers. The juror testified he had a conversation with one Bollinger who purported to tell him just how the trouble occurred and from that he formed an opinion the defendant was guilty. That he still had the opinion and it would take evidence to remove it. On being questioned by the court he said he understood Bollinger had not seen the shooting but went there immediately following and related to the juror what he (Bollinger) had learned from others. The juror said what Bollinger told him would not weigh with him in the jury room, but he could and would decide the case on the evidence heard at the trial, and the law as given by the court. Bollinger was not called as a witness in the case. (3) Instructions 1 and 5 correctly declare the law and do not conflict with Instruction 6. They are not confusing nor misleading. State v. Glass, 318 Mo. 611. (4) Instruction 6 is not erroneous. It correctly declares the law of self-defense. It did not take from defendant the right to determine for himself whether the apparent danger afforded reasonable grounds for apprehension. It clearly tells the jury that if defendant had reasonable cause to apprehend a design on the part of Hagan to kill him or to do him great bodily harm, and there was reasonable cause to believe such design would be carried out immediately, and he shot at Hagan to prevent the accomplishment of that design, without intent to shoot deceased, then the killing was excusable. The instruction tells the jury it is not necessary that the defendant show a danger real or actual, but, only that he had reasonable cause to believe and did believe it was real or actual. The instruction correctly declared the law of self-defense as applied to the facts in evidence. State v. Griffin, 87 Mo. 608; State v. Parker, 106 Mo. 217; State v. Goodwin, 271 Mo. 73; State v. Roberts, 294 Mo. 284; State v. Linn, 223 Mo. 98. (5) The court cannot be convicted of error in not instructing the jury on the unintentional or accidental killing of deceased. The issue of accidental shooting was submitted to the jury in Instruction 6. It squarely told the jury that if defendant fired at Hagan to prevent a design on the part of the latter to inflict death or great bodily harm on defendant, and in so doing shot and killed deceased, such killing was excusable. The only evidence in the case on defendant's part in defense of the killing of deceased was that he unintentionally shot her while defending himself against Hagan. In no other way or form could it be said under the evidence the shooting of deceased was accidental. If he did not fire at Hagan in self-defense as that defense is defined by our law then the shooting of deceased was not accidental and he would be equally as guilty as though he had fired the shot directly at her with intent to kill her. Hence the court properly submitted the issue of accidental killing in this instruction. State v. Renfrow, 111 Mo. 589; State v. Payton, 90 Mo. 220; State v. Montgomery, 91 Mo. 52; State v. Jump, 90 Mo. 171. (6) The court did not err in refusing to instruct on manslaughter. The evidence offered by the State tended to show nothing if not murder, and that of the defense nothing if not self-defense. There was no evidence to justify an instruction on manslaughter. In such instances such instruction is properly refused. State v. Lloyd, 263 S.W. 212; State v. Boston, 256 S.W. 744; State v. Kilgore, 70 Mo. 546. There was no evidence in the case showing the shots were fired in a heat of passion. He made no claim that he did not intend to kill Hagan when he fired the shots. State v. Hollingsworth, 156 Mo. 178; State v. Likens, 231 S.W. 578; State v. Myers, 221 Mo. 598; State v. Butler, 247 Mo. 685; State v. West, 202 Mo. 128.
Defendant was charged by indictment with and tried for the crime of murder in the first degree for killing Bertha Stallings. He was found guilty of murder in the second degree and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of fourteen years. From the judgment upon such verdict, he was granted an appeal.
It is not contended that the evidence was insufficient to authorize a verdict of guilt on defendant's part of a criminal homicide. The evidence was unusually conflicting concerning what actually transpired immediately before and during the shooting and killing. For a preliminary understanding of the case, the statement of facts made by the learned Attorney-General will suffice. We quote from and adopt the same, as follows:
To continue reading
Request your trial