State v. Swearengin

• Citation: 269 Mo. 177,190 S.W. 268
• Decision Date: 06 December 1916
• Docket Number: No. 19650.,19650.
• Parties: STATE v. SWEARENGIN.
• Court: Missouri Supreme Court

190 S.W. 268

269 Mo. 177

STATE v. SWEARENGIN.

No. 19650.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Everett Swearengin was convicted, and appeals. Reversed and remanded for new trial.

Defendant was tried in the circuit court of Douglas county upon an information charging murder in the first degree, for that, as it was averred, he had shot and killed one Samuel O. Narramore. Having been found guilty by the jury of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of ten years, he has, after the usual motions, appealed.

Such of the facts as may tend to make clear the points which we will find necessary to consider in our opinion run, briefly, thus: On the 4th of July, 1914, there was a picnic at a place in Douglas county known as Johns Mills. To this picnic came, among others, defendant, halting a moment on his journey thither, at a place called Abadale, where he purchased some cartridges for his revolver. Shortly after defendant arrived on the picnic ground, upon some provocation not disclosed (and not pertinent to this case if disclosed), defendant got into a quarrel with a young woman, who seems to have either slapped defendant or struck him with an umbrella. Defendant, in return for her blow, either slapped her or pushed her from him. This altercation with the young woman seems to have occurred some three hours before the time at which deceased was killed. At a time shortly after the altercation with the young woman, deceased met defendant, and after some words, seemingly growing out of defendant's altercation with the young woman (though the record cannot be said to be clear upon this point), defendant applied to deceased an epithet a little more vulgar and obscene than is conventional, even in cases of homicide committed by drunken men at picnics. Thereafter defendant and deceased seem to have parted without any further hostilities occurring. After this initial altercation and some little time before the homicide, deceased, it is said, went to one John Hide, a witness in the case, and made inquiry of Hide where he could obtain a weapon. Hide directed him to the coat of the witness, which was either tied to or hanging upon a saddle, in the pocket of which there was a pair of metal knucks. Deceased seems to have gotten these knucks; at least, the witness testified that shortly afterward the knucks were gone from the pocket of the coat.

Subsequent to this, and apparently shortly after the noon hour, defendant and deceased met at the picnic grounds and the shooting occurred. The testimony is conflicting as to whether defendant on this occasion first accosted deceased, or deceased accosted the defendant. The testimony for the state leaves this matter in doubt; while the testimony for the defendant is that deceased came to defendant on the picnic grounds and inquired of him whether he meant what he had said to deceased in the previous encounter, above mentioned. Being advised by defendant that the latter did mean it, deceased, applying the conventional opprobrious epithet to defendant, struck at him with a pair of knucks, and instantly defendant drew his pistol and shot deceased.

Upon this phase of the case, and as to what happened at a time instantly before the shooting, the testimony of the state tends to show that defendant applied an opprobrious epithet to deceased, and the latter replied, "I will be damned if I will take it," and either struck defendant upon the head, or struck at him without hitting him, and defendant instantly shot deceased. The witnesses for the state say that the shooting by defendant and the striking of, or at, defendant by deceased, were simultaneous; that they could tell no difference between them; that "they were right together." Other evidence in the case on the part of the state shows that defendant partially drew his pistol from his pocket as he was entering into the last difficulty with deceased.

The defense is self-defense. Upon this phase there was some evidence to the effect that deceased, before he was shot by defendant, had, as stated above, armed himself with a pair of metal knucks, and that he struck defendant therewith, wounding him on the head and drawing blood, before defendant fired the fatal shot. Much conflict is to be found in the evidence touching whether the wound upon the defendant's head and the blood which flowed therefrom were caused by a blow from the deceased, or whether they were caused by an attack made on defendant by the mother of deceased with an umbrella shortly after the shooting.

Much testimony came in as to the metal knucks. It was shown, without contradiction, that these knucks must have been gotten by deceased from the coat pocket of the witness Hide, and that they were found after the death of the deceased in the pocket of certain trousers which had belonged to the latter. That deceased either struck, or struck at, defendant with a pair of knucks, or with his fist just before, or simultaneous with, the shooting by defendant, is abundantly shown by the evidence. The sole conflict lies in the questions of: (a) Whether deceased used a pair of knucks in this striking; (b) whether he actually hit defendant, or not; and (c) whether at the time he struck defendant, or struck at the latter, defendant was not already engaged in drawing his pistol. In other words, the questions which are troublesome, and which were before the jury, are whether deceased acted, in doing what he did, to protect himself from a threatened assault by defendant with a pistol, or whether defendant, in doing what he did, acted to protect himself from a threatened assault by deceased with metal knucks. There is evidence on both sides of these questions. These were, of course, questions of fact for the jury. On them the jury has found against the defendant and in favor of the theory of the state. There is abundant evidence justifying this finding, and so we need only consider, in what we shall say, the alleged errors occurring upon the trial in the admission of testimony and in the giving of certain instructions which are challenged. These questions need not be set forth here, since we will sufficiently refer to them in connection with our discussion of them in the opinion.

Fred Stewart, of Ava, and G. Purd Hays, of Ozark, for appellant. John T. Barker, Atty. Gen. (Kenneth C. Sears, Asst. Atty. Gen., of counsel), for the State.

FARIS, P. J. (after stating the facts as above).

I. It is urged that the information herein is bad, for that the learned prosecuting attorney, seemingly by a mere clerical misprision, thrice out of the four times in which the term is found in the information, wrote that the assault, shooting, and striking were done of defendant's "malice of aforethought," instead of using the formal and time-tried expression "malice aforethought." While we are of the opinion that the unnecessary interpolation of the preposition "of" was mere nonhurtful surplusage (State v. Meyers, 99 Mo. 107, 12 S. W. 516) yet, since this case must on other grounds be reversed and remanded, the learned prosecuting attorney may (if he is so advised) amend the information by striking out the surplus preposition, lest the attempted innovation should clutter up the law by becoming a precedent, and so invite carelessness.

II. Complaint is made of the instruction given by the court on self-defense; which complaint, so far as we are able to understand its precise nature, is based upon the use by the learned trial court of the italicized words in the following clause:

"If at the time he (defendant) shot he had reasonable cause to believe and did believe, that it was necessary for him to shoot and kill to protect himself from such apprehended danger, you will acquit on the ground of self-defense."

A reference to the adjudged cases and a brief looking to the logic of the matter will conclusively show that this complaint is more specious than real. While we have repeatedly criticized the language of this instruction as being a departure from the approved and proper form, we have not said, of late at least, that the giving of it constitutes reversible error. State v. Lewis, 248 Mo. 498, 154 S. W. 716. In the case last cited, a circumlocution or periphrase is suggested in lieu of the alleged objectionable expression "that it was necessary for him to shoot and kill to protect himself." It is there said that it would be better to say "that it was necessary for him to use his pistol in the way he did to protect himself." State v. Thomas, 78 Mo. 339; State v. Talmage, 107 Mo. 557, 17 S. W. 990. Palpably, the point of defendant's objection is that the instruction as given requires that defendant believe the danger impending to be so great as that, to avert it, he must shoot to kill before he is allowed by law to shoot at all. In the absence of any evidence contradicting the intent to kill and in the light of the facts before us here as to the manner of the use by defendant of his pistol, that is, that defendant did with a deadly weapon shoot deceased in a vital spot and kill him, and of our holdings that a periphrase is preferable, it is difficult to conclude that the error here complained of is a reversible...