State v. Starr
| Decision Date | 31 March 1866 |
| Parties | STATE OF MISSOURI, Respondent, v. GEORGE STARR, Appellant. |
| Court | Missouri Supreme Court |
Appeal from the St. Louis Criminal Court.
Shreve & Mauro, for appellant.
Vastine, Cline & Jamieson, and C. P. Johnson, for respondent.
The appellant was indicted at the March term, 1865, of the Crimina Court of St. Louis, for the killing of William L. Smith. At the November term following he was tried and convicted of murder in the first degree and sentenced to be executed. Many reasons are assigned for a reversal of the judgment below, but the main ones relied on may be classed in four propositions: 1. That the court erred in declaring the law of homicide. 2. That the court erred in refusing to declare the law of manslaughter. 3. That the court erred in refusing to instruct in reference to provocation. 4. That the court permitted illegal evidence to go to the jury.
The indictment is founded on the first section of the second article of the statute respecting crimes and punishments (R. C. 1855, p. 558), which declares that every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree. The fourth section declares homicide to be justifiable when committed “in resisting any attempt to murder a person, or to commit any felony upon him or her, or in any dwelling-house in which such person shall be,” &c.
As to the first objection, we have been unable to discover any error in the instructions given by the court on its own motion, or at the instance of the counsel for the State, defining the law of homicide. Every instruction complained of has been repeatedly sanctioned by this court, as will be seen by referring to the various books of Reports. The law of homicide may be regarded as definitely established in this State by a series of well considered and consistent decisions, and it ought not to be unsettled or varied without gross mistakes have been made. We perceive no such mistakes, but on the contrary believe the former adjudications of this court contain a correct exposition of the statute. It is the duty of the court to instruct the jury with reference to the testimony in the case, and where the evidence all tends to prove one offense, it is wrong to mislead the jury by giving instructions in relation to a different one. Where, under the indictment, the accused may be convicted of murder in the first degree, or of any of the less grades of homicide, in cases in which the evidence will warrant it, the court, in its discretion, may direct the jury by suitable instructions that the case, as made out by the evidence, of which they are the judges, is one of murder in the second degree, and, if the evidence is believed, it will not warrant a verdict for murder in the second degree, or for any of the degrees of manslaughter-- State v. Schoenwald, 31 Mo. 147. This is simply declaring the law as applicable to the facts. It is a mistaken notion that has sometimes prevailed, that in criminal cases courts are nothing but aids to the juries. The truth is, that, in criminal as well as civil cases, juries are aids to the court. It is their duty to ascertain the facts, and the court must apply the law to the given state of facts thus found.
In this case, the court declared the law on the theory that the killing was either murder in the first degree, or it was justifiable homicide. A careful review of the testimony satisfies us that this view was correct. The defence was conducted purely on this basis. Had the jury believed the evidence on the part of the defendant, they would have been fully warranted in finding it a case of justifiable homicide--a killing in self-defence. There was not a scintilla of evidence, so far as we have been able to discover, going in the least to show that it came within either of the grades of manslaughter.
The defendant requested the court to give the following instructions:
“1. If the jury shall believe from the evidence adduced in the case that the defendant, Starr, had reasonable cause to apprehend a design on the part of the deceased to commit a felony, or to do some great personal injury to the defendant, and that there was reasonable cause to apprehend immediate danger of such design being accomplished, and that he killed the deceased in order to prevent the accomplishment of such design, then you should acquit the accused on the ground that such homicide is justifiable in the law because committed in self-defence. And the court further instructs the jury, that it is not at all necessary, in order to acquit on the ground of self-defence, the danger should have been real or actual, or that such danger should have been then impending and about to fall on him; it is only necessary that the jury shall believe that the defendant had reasonable cause to apprehend that there was immediate danger of a design to commit a felony, or to do great bodily harm to the defendant to be about to be accomplished.
2. If the jury shall believe from the evidence that the deceased voluntarily entered into an altercation with the defendant, and because of certain offensive language applied to him, or which he supposed was applied to him by the deceased, stepped up to the door of the accused, in which the accused was standing, and kicked the accused, and sprang upon him with a knife in his hand, and that from such circumstances the accused had reasonable cause to apprehend a design on the part of the deceased to do him great bodily harm or some great personal injury, and that there was reasonable cause to apprehend that there was immediate danger that such design would be accomplished, and to prevent such design defendant killed deceased, then such killing was justifiable under our law, because done in his self-defence.”
The court gave the above instructions, but annexed to them the subjoined qualifications:
“The foregoing instructions are given with this qualification, that the right of self-defense which justifies homicide does not imply the right of attack; and the plea of justification in self-defence cannot avail in any case where it appears that the difficulty was sought for and induced by the act of the party in order to afford him a pretence for wreaking his malice.”
To which action of the court, in annexing the above qualification to the instructions, the defendant, by his counsel, excepted. The above instructions presented the law of self-defense or justifiable homicide, in a remarkably favorable aspect toward the defendant. The qualification was necessary in view of the evidence in the case. The testimony tended to show that the accused sought the altercation, and was instrumental in bringing it on; and if the jury found such to be the fact, the law would not permit him to shield himself behind the doctrine of self-defence. Besides, the qualification is couched in the very language of Wharton, and commends itself for its justice, and is well supported by authority--Whart. on Hom. 197; 1 Russ. on Cr. 521, 585; 1 Hale, 451; State v. Ferguson, 2 Hill (S. C.), 619; State v. Lane, 1 Ired. 113. But the instruction to which the greatest objection is made is as follows:
“If you find from the evidence that the defendant and the deceased had a difficulty which resulted in the death of the deceased, and that defendant commenced the difficulty, or brought it on by any willful or unlawful act of his, or that he voluntarily and of his own free will and inclination entered into the difficulty, then there is no self-defense in the case, and you should not acquit on that ground; and in that case it makes no difference how high the passion of the defendant may have arisen, nor how imminent the peril may have been in which the accused was placed during the conflict.”
This instruction is copied precisely from one in the case of the State v. Shoultz, which was approved and sanctioned by this court, although it was not specially commented on by Judge Ryland, who delivered the opinion in that case. We do not consider that this instruction is open to the severe criticism which has been placed upon it by the defendant's counsel, that “our statute enacts that homicide committed in self-defense shall be justifiable in resisting a felony, but this declares it shall be murder in the first degree.” As an abstract proposition of law, it is certainly very broadly stated, but is justified in reference to the evidence here. There was evidence to show that the accused had induced the deceased to disarm himself; that he had incited and brought about the difficulty or altercation, and then had taken advantage of the helpless condition of the deceased, and inflicted mortal wounds with a deadly weapon. One who is...
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