State v. Talmage
| Decision Date | 22 December 1891 |
| Citation | 17 S.W. 990,107 Mo. 543 |
| Parties | The State v. Talmage, Appellant |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.
Reversed and remanded.
H. S Priest, Joseph S. Laurie, Samuel C. Major and Isaac H. Kinley for appellant.
(1) There is no foundation for an instruction upon the theory of murder in the second degree. First. Conceding the defendant was the aggressor, a concession, in the face of the uncontradicted evidence, yet, if he brought on the affray with no felonious intent, but in the course of the struggle found it necessary to kill deceased in order to save himself from serious personal injury, the offense is manslaughter not murder. State v. Partlow, 90 Mo. 608; State v Parker, 96 Mo. 382; State v. Herrell, 97 Mo 105; State v. Wensell, 98 Mo. 137; State v. Elvins, 101 Mo. 243; State v. Bryant, 102 Mo. 24; Meuly v. State, 26 Tex. Ct. App. 274; Hash v. Com., 13 S.E. 398. And such felonious intent must be shown by the state. State v. Cleveland, 86 Ala. 1; State v. Gibson, 89 Ala. 121; State v. Tabor, 95 Mo. 585. Second. The homicidal act, as shown by the state's evidence, was not done in malice, but in the heat of passion, aroused by adequate provocation. (a) Malice is an essential element of murder in either degree, and is the distinguishing characteristic between murder in the second degree and manslaughter. State v. Wieners, 66 Mo. 13; State v. Curtis, 70 Mo. 594; State v. Robinson, 73 Mo. 306. (b) The burden is on the state to prove malice, and the jury are bound to find malice in order to support a verdict as for murder in the second degree. State v. Stoeckli, 71 Mo. 589; State v. Wingo, 66 Mo. 181. (c) Malice may be implied or presumed from the simple act where an intentional killing with a deadly weapon is shown, and nothing more appears. State v. Gassert, 65 Mo. 352; State v. McKinzie, 102 Mo. 626. But no such implication or presumption exists or arises where justification, excuse or mitigation is apparent on the proof offered in support of the prosecution. State v. Holme, 54 Mo. 153; State v. Tabor, 95 Mo. 585; State v. Elliot, 98 Mo. 151; State v. Anderson, 98 Mo. 461, 472; State v. Curtis, 70 Mo. 594, 599; State v. Musick, 101 Mo. 260, 270; State v. Jones, 29 S.C. 201, 235; 9 Am. & Eng. Law Encycl., p. 54, and cases cited in note 1. (d) When adequate provocation appears, the existence of malice is negatived, and the homicide reduced to manslaughter. State v. O'Hara, 92 Mo. 59; State v. Curtis, 70 Mo. 594; State v. Wilson, 98 Mo. 440, 448; State v. Gee, 85 Mo. 647. (e) Personal violence constitutes adequate provocation. State v. Starr, 38 Mo. 292; State v. Branstetter, 65 Mo. 149; State v. Ellis, 74 Mo. 207, 218; State v. Stewart, 78 Ala. 436; Wharton on Homicide, secs. 398, 422; 2 Bish. Crim. Law, sec. 702. (f) The assault and blows of the deceased in this case were amply sufficient to satisfy all the requirements of the law as to adequate provocation. Schlecht v. State, 75 Wis. 486; State v. Davidson, 95 Mo. 155; State v. Wensell, 98 Mo. 137, 149. Third. If viewed in the light of a mutual combat arising upon sudden quarrel, the offense is but manslaughter. State v. Partlow, supra, and cases cited on p. 450; State v. Wilson, 98 Mo. 440, 450; State v. Davidson, 95 Mo. 155. (2) The evidence shows that defendant acted in self-defense, and he was, therefore, entitled to an acquittal. First. Mere words will not justify an assault or abridge the right of self-defense. Com. v. Selfridge, Horr. & Thomp. Self-Defense Cases, pp. 1, 227. Second. The evidence shows that defendant did not intend to provoke a combat; consequently his right of self-defense against the unlawful attack of deceased was unimpaired. Partlow's Case, supra. Third. Defendant did not bring on the "difficulty." State v. Cullen, 82 Mo. 623; State v. McDaniel, 94 Mo. 301; State v. Harrod, 102 Mo. 590. Fourth. But even though defendant did bring on the difficulty, yet by "retreating to the wall" he recovered his right of self-defense. 4 Black. Com. 184; 3 Greenl. Ev., sec. 116; 2 Thompson on Trials, secs. 2168, 2169; Partlow's Case, supra; Hash v. Com., 13 S.E. 398; Jackson v. State, 28 Tex. Ct. App. 108. Fifth. Defendant lawfully exercised his right of self-defense; his apprehension of great bodily harm was reasonable, and under the circumstances he was justified in the use of a deadly weapon. State v. Harrod, 102 Mo. 590; State v. Hickam, 95 Mo. 322; State v. Eaton, 75 Mo. 586; State v. Gonzales, 28 Tex. Ct. App. 130; Pond v. People, 8 Mich. 150. (3) The court erred in failing to instruct the jury, as required by section 4208, Revised Statutes, upon questions of law arising in the case, which were necessary for their information. First. It was the duty of the trial court to instruct upon manslaughter in the third degree, if there was any evidence tending to show that grade of homicide. State v. Moxley, 102 Mo. 374; State v. Turlington, 102 Mo. 642; State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592. Second. The evidence tended to show that, although the shooting was voluntary, it was done "without a design to effect death," and being in the heat of passion, aroused by an adequate provocation, it was, if not justifiable in self-defense, manslaughter in the third degree. R. S. 1889, sec. 3471; State v. McKinzie, 102 Mo. 620; State v. Peak, 85 Mo. 190; State v. Palmer, supra; State v. Partlow, supra; State v. Thomas, 78 Mo. 327, 338; State v. Elliot, 98 Mo. 150, 156. Third. The court ignored the evidence showing defendant's bona fide attempts to withdraw from the conflict; also the evidence tending to show a mutual combat upon sudden quarrel, and failed to instruct the jury upon such phases of the case. State v. Jones, 61 Mo. 232; State v. Berkley, 92 Mo. 41. Fourth. The court failed to define "adequate provocation" and "heat of passion," and failed to instruct the jury what passion would reduce a wrongful homicide to the grade of manslaughter. State v. McKinzie, 102 Mo. 620; State v. Walker, 98 Mo. 107; State v. Sneed, 91 Mo. 552; State v. Ellis, 74 Mo. 219; State v. Dunn, 18 Mo. 419. (4) The court erred in giving and refusing certain instructions, the particulars of which, together with the authorities cited, are set forth in the brief. (5) The judgment should be reversed and the prisoner discharged. State v. Wingo, 66 Mo. 181; State v. Primm, 98 Mo. 368; State v. Owsley, 102 Mo. 678.
John M. Wood, Attorney General, W. W. Rucker, Prosecuting Attorney, and W. S. Stockwell for the State.
(1) The offense of murder in the second degree was included in the charge of murder in the first degree, and the abandonment of the allegations, descriptive only of the graver offense, left the minor offense fully charged, upon which the defendant could be legally tried, as if the indictment had in the first instance only been for murder in the second degree. R. S 1889, sec. 3949; State v. Burk, 89 Mo. 635; State v. Lane, 64 Mo. 324; Com. v. Dean, 109 Mass. 349; Jennings v. Com., 105 Mass. 586; Baker v. State, 12 Ohio St. 214; Com. v. Tuck, 20 Pick. 356; 1 Bish. Crim. Proc., secs. 1387, 1396. (2) No error was committed in refusing to permit Shores to testify as to "whether or not he knew that Tidd had boxing gloves and practiced with them?" State v. Shultz, 25 Mo. 129; White v. Maxcy, 64 Mo. 559. (3) No reasons were assigned for the objection to the testimony of Brinckley as to what he said in answer to the remark of Talmage as to whether he did right, and the action of the court in admitting the testimony is not reviewable. State v. Johnson, 76 Mo. 121; State v. Brannum, 95 Mo. 19. (4) The court permitted the defendant to testify how long he had been laid up from the injury received on the train and as to the condition of the wound at the time of the difficulty. The whole matter was testified to by defendant and by experts called on that question, and no error, and certainly none of which defendant can complain, was committed in refusing to further allow him to answer the question objected to. It was not the main fact on trial, and the details of that accident, and all that occurred afterward, were not material. (5) Instruction, numbered 1, in regard to the presumption of innocence and reasonable doubt, is correct. State v. Gee, 85 Mo. 647; State v. Luke, 104 Mo. 568; State v. Jones, 86 Mo. 623; State v. Dickson, 78 Mo. 438; State v. Moxley, 102 Mo. 374. (6) The third instruction given on the part of the state follows the later decisions of this court, as to the circumstances under which a perfect and imperfect right of self-defense exists, and is correct. State v. Partlow, 90 Mo. 608; State v. Berkley, 92 Mo. 41; State v. Gilmore, 95 Mo. 554; State v. Davidson, 95 Mo. 159; State v. Bryant, 102 Mo. 24; State v. Parker, 96 Mo. 393. (7) The fifth instruction upon the question of self-defense conforms to the rule laid down in the Partlow case and subsequent cases and follows approved precedents. State v. Hicks, 92 Mo. 431; State v. McDaniel, 94 Mo. 301; State v. Thomas, 78 Mo. 327; State v. Bryant, 102 Mo. 24; State v. Stiltz, 97 Mo. 20; State v. Woods, 97 Mo. 31. (8) It is not alleged in the motion for a new trial that the court committed any error in failing to instruct the jury upon questions of law arising in the case, which were necessary for their information, and this court cannot review the actions and rulings of the trial court in that respect. State v. Reed, 89 Mo. 168; State v. Burk, 89 Mo. 635; State v. McDonald, 85 Mo. 539; State v. Mitchell, 98 Mo. 657; State v. Emory, 79 Mo. 461. The questions, therefore, whether the court should have instructed as to manslaughter in the second or third degrees, and upon the theory, that the defendant had in good faith "retreated to the wall," and if so his...
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