State v. Stewart

• Decision Date: 16 May 1919
• Docket Number: No. 21076.,21076.
• Citation: 212 S.W. 853,278 Mo. 177
• Parties: STATE v. STEWART.
• Court: Missouri Supreme Court

212 S.W. 853

278 Mo. 177

STATE v. STEWART.

No. 21076.

Supreme Court of Missouri, in Banc.

May 16, 1919.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Robert Stewart was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Pearson & Pearson, of Louisiana, Mo., for appellant.

Frank W. McAllister, Atty. Gen., and Henry B. Hunt and Clarence P. Le Mire, Asst. Attys. Gen., for the State.

WILLIAMS, J.

An opinion was originally prepared in this case by WALKER, J. All of that opinion was concurred in by the court, with the exception of one paragraph thereof dealing with the question of the right of the prosecuting attorney to make a reply statement of facts to the jury at the beginning of the trial. It being therefore entirely unnecessary to redraft that portion of the opinion and the statement upon which all are agreed, we will adopt that portion of the original opinion in this opinion. The portion thus adopted is as follows:

"Appellant was charged by information in the circuit court of Pike county with murder in the first degree. Upon a trial, he was convicted of murder in the second degree, and his punishment assessed at 10 years in the penitentiary. From this judgment he appeals.

"Walter Allison, the deceased, and the appellant were farmers living in the same neighborhood in Pike county. Allison was a single man, and the appellant was married, having a wife and children. For several months prior to the killing, deceased had been clandestinely meeting appellant's wife. Appellant, upon being informed of this fact, on the day preceding the killing, requested the deceased to desist in his attentions to his wife. This the deceased promised to do. On December 23, 1916, deceased, in company with Arvie Allison, his nephew, went to some mail boxes on a highway in the neighborhood, one of which belonged to the deceased and another to the appellant. They found the wife and daughter of the appellant at the mail boxes waiting for the arrival of the carrier. The testimony of the state is that upon their arrival they were greeted by the two women; the wife saying that she was not supposed to speak to them. Looking across an adjoining field, she saw her husband coming rapidly towards them, and said, `Here comes Bob; there is going to be some trouble.' Reaching the scene of the killing, he spoke roughly to the deceased. Just at this juncture, the deceased reached down to pick up his gloves, when the appellant, with an oath, began shooting at him. At the first shot, which took effect, the deceased attempted to straighten up, but at the second he fell, saying, `Bob, you have killed me.' Appellant, at this juncture, turned and walked away, accompanied by his wife and daughter. The nephew of the deceased, assisted by others, conveyed the latter, who was not then dead, to his home, where he died.

"For the defendant a witness named Lohse testified that from his home, 100 feet or more from the mail boxes, he saw the killing; that the deceased, when the appellant approached, had his left hand turned back, as though about to throw something. At this juncture appellant fired the first shot; that the attitude of the appellant had not changed when the second shot was fired; that the pistol with which the shooting was done belonged to this witness, and immediately after the killing he went down and got it from the appellant, went to his house, and telephoned for help, and returned a few minutes later to where the deceased was lying in the road and assisted in conveying him to his home; that on one occasion prior to the shooting he had discussed with the appellant the intimacy of the latter's wife and the deceased. "The fifteen year old daughter of the appellant stated that, when her father came up and asked the deceased why he had not complied with his promise, the latter picked up a stone to throw it, saying, with an oath, `I will smash your brains out.'

"The appellant's testimony material to the matters at issue is substantially as follows: Upon seeing the deceased and his nephew leave the former's home and go down to the mail boxes, he went to his house, put a pistol in his pocket, and went across the field to the mail boxes. Approaching them, he said to the deceased, 'What did you promise me about my family yesterday?' That the deceased replied with an oath, `I will smash your brains out,' and picked up a stone lying in the road. In the meantime the appellant drew his pistol, and, before deceased could throw the stone, he shot him. At the first shot the deceased threw the stone on the ground, and it rolled almost to the appellant's feet. That the deceased then reached his hand towards his hip pocket, when the appellant fired the second shot, and deceased fell to the ground. They were some 10 or 12 feet apart when the shots were fired. That appellant then climbed over the fence, and, with his wife and daughter, went down the road to the home of an uncle. The next morning he went back, and got the stone which he states deceased had tried to throw at him; and it was introduced in evidence as being the one in question.

"The instructions as to the grade of the crime were limited to murder in the first and second degrees and self-defense.

"I. Error is assigned in the failure of the trial court to give an instruction for manslaughter in the fourth degree. The testimony, if this contention is sustained, must bring the case within the purview of section 4468, Rev. St. 1909, which, so far as pertains to the case at bar, provides that every killing of a human being by the act, procurement, or culpable negligence of another, which would be manslaughter at the common law, and which is not otherwise defined to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.

"Voluntary manslaughter at the common law is the unavoidable killing of another without malice or upon a sudden quarrel, or in a heat of passion. Hale's P. C. 449; 1 Bl. Cora. 191.

"Where the killing is intentional, as contemplated by the statute cited, manslaughter in the fourth degree, under our rulings, is defined to be the killing of a human being in a heat of passion on reasonable provocation, without malice or premeditation, and under such circumstances as will not render the offense justifiable or excusable. State v. Sebastian, 215 Mo. loc. cit. 80, 114 S. W. 522, and cases.

"It is elemental that in the giving of instructions in cases of homicide it is the duty of the trial court to declare the law upon all grades of the crime to which the testimony is applicable. If, therefore, substantial evidence has been adduced in this case, although it may consist of the defendant's testimony alone, showing a state of facts which, if true, would reduce the grade of the crime, it was the duty of the court to instruct the jury upon the grade thus shown. State v. Heath, 221 Mo. loc. cit. 581, 121 S. W. 149.

"The testimony to support the appellant's contention as to his right to the instruction for manslaughter in the fourth degree is that the deceased, with an opprobrious oath, said he would smash appellant's brains out, and, picking up a stone, attempted to throw it at appellant, whereupon the latter drew a pistol and shot the deceased through one of his legs, who fell to the ground, letting the stone drop at appellant's feet. Appellant followed this up with another shot, inflicting the wound from which death resulted. Whatever may be the variant facts under which instructions for manslaughter have been given in the different cases, it must appear, to authorize same, that there was reasonable provocation for the act of the accused.

"As to what constitutes reasonable provocation adequate to reduce the offense from murder to manslaughter is defined in State v. Conley, 255 Mo. 185, 164 S. W. 193, as such a state of facts as is calculated to excite the passions beyond control, and, in the mind of the average just and reasonable man, stir up resentment likely to cause violence and danger to life, and such as would naturally tend to disturb and obscure the reason and lead to action from passion rather than judgment. This probably is as general a definition as can be well given. One of the essentials of such provocation is evidence of personal violence on the part of the deceased towards the defendant. Reasoning from analogous cases, while not wholly satisfactory, will enable a conclusion to be formed as to whether this essential is present in the case at bar to such an extent as to authorize the giving of the instruction for manslaughter.

"We held in State v. Barrett, 240 Mo. loc. cit. 169, 144 S. W. 485, where the evidence showed that the deceased was advancing upon the defendant with a stick or club in his hand in a threatening manner at the time the shots were fired, that this did not constitute such an assault by the deceased as amounted to personal violence.

"In State v. Sharp, 233 Mo. loc. cit. 290, 135 S. W. 488, although there was much conflict in the testimony, it was shown that the shooting commenced, which resulted in the killing, upon an officer in citizen's clothes drawing a pistol upon the defendant. In refusing the instruction for manslaughter in the fourth degree, the court held that there was no such personal violence offered to the defendant as to constitute such reasonable provocation as would authorize an instruction for manslaughter in the fourth degree.

"In State v. McKenzie, 228 Mo. loc. cit. 396, 404, 128 S. W. 948, the deceased rushed at the accused with a large butcher knife; whereupon the accused backed up against a door, and, failing to get it open, drew a revolver and shot the deceased. It was held that these facts did not authorize the giving of an instruction for manslaughter in the fourth degree.

"In State v. Gordon, 191 Mo. 120, 125, 89 S. W. 1025, 109 Am. St. Rep. 790, the deceased, who was a much larger man than the accused, caught the latter, and pressed him to...