State v. Taylor

• Decision Date: 01 February 1898
• Citation: 44 S.W. 785,143 Mo. 150
• Parties: STATE v. TAYLOR.
• Court: Missouri Supreme Court

44 S.W. 785

143 Mo. 150

STATE v. TAYLOR.

Supreme Court of Missouri, Division No. 2.

February 1, 1898.

HOMICIDE — KILLING TRESPASSER — MANSLAUGHTER — MURDER.

1. The owner of a dwelling house may resist a trespass therein by force, but has no right to kill the trespasser unless necessary to prevent the commission of a felony on his person or property.

2. Where the owner of a dwelling house, having no reasonable cause to apprehend the commission of a felony by a trespasser, kills the latter in a heat of passion aroused by the entry, the killing is manslaughter.

3. Where one deliberately or premeditately kills another to prevent a mere trespass on his property, whether the trespass could or could not otherwise be prevented, he is guilty of murder.

4. Deceased, after fighting with defendant, was ejected from the latter's house, and, upon re-entering to get his coat, was shot by defendant, who stood inside, and said he would kill the first man who came in. Testimony was given that deceased knocked or kicked the door open, which testimony was contradicted. Held sufficient to justify a verdict of murder in the second degree.

Appeal from circuit court, Audrain county; E. M. Hough, Judge.

Henry Taylor was convicted of murder in the second degree, and he appeals. Affirmed.

Edmonston & Cullen and Bickley & Bickley, for appellant. E. C. Crow, Atty. Gen., for the State.

SHERWOOD, J.

The defendant, a negro, was awarded 20 years in the penitentiary for shooting and killing, with a musket, a negro boy some 16 or 17 years old. The killing was done at Taylor's house. Lee Smith, the deceased, went to Taylor's the evening of the homicide, as did a number of other negroes of both sexes. After being there a short time, Smith became involved in a quarrel with defendant. Both parties threw off their coats, and, after exchanging a few blows, Smith was led out or put out of the room, and walked away with a friend. Having proceeded a short distance, Smith remembered that his coat had been left in Taylor's house, and, saying he would return for it, went back towards Taylor's house; and in a very short space of time the report of the shot was heard which took his life, and his friend, returning to Taylor's, found Smith shot through the body, and dead, but without any weapons on his person, nor does it appear he attempted to draw or use any. He was shot just as he entered the room which he had so recently left. There was testimony to show that he knocked or kicked the door open as he entered, and there was testimony of a contrary effect. On Smith's return for his coat, it seems his approach was heard, and Taylor was told Smith was outside, when he ran into another room, and, seizing his musket, returned, and said, "I will kill the first one that comes in." Thereupon Caldwell, another negro, grabbed the musket, and expostulated with Taylor, but to no purpose; and, as Smith entered the door, Taylor wrenched the musket away from Caldwell, and exclaimed, "Get away from that door. I will kill the first man that comes in," and immediately fired, and Smith fell dead; whereupon Taylor patted Caldwell on the shoulder, and said, "I am the man that done it."

The court gave, of its own motion, eleven instructions, one at the instance of the state, and two at the request of defendant, and refused three asked by the latter. The instructions given by the court embraced murder in the first and second degrees, manslaughter in the fourth degree, and self-defense. The jury returned a verdict for murder in the second degree. There was ample evidence to support the verdict; indeed, to have justified a finding of murder in the first degree. It is difficult to see what evidence there was of self-defense, but of this defendant cannot complain. The instructions were in substance such as are usually given, and, finding no error in the record, we affirm the judgment. All concur.

On Rehearing.

(Feb. 16, 1898.)

GANTT, J.

The defendant was indicted in the Audrain circuit court for the murder of Lee Smith, and was convicted of murder in the second degree, and his sentence fixed at 20 years in the penitentiary. This cause was heard at the beginning of this term, and the judgment of the circuit court was affirmed; but counsel for defendant having moved for a rehearing, on the ground that this court had not considered certain instructions which the circuit court refused, it was granted.

The facts disclosed by the record are as follows: The defendant, a negro man, lived in Mexico, Mo., and on the night of the 30th day of January, 1897, the defendant and several other negroes were in a saloon, drinking beer from a can. Lee Smith, the deceased, was a negro boy, about 16 or 17 years old. Prior to the 30th day of January, 1897, no trouble had occurred between defendant and deceased. About that time there were a number of young negro men, musicians from Moberly, staying at the house of defendant, and they were accustomed to play on their instruments in the evenings, and their music attracted quite a number of their race to the house. After leaving the saloon that evening, defendant went to his home. It was disclosed in evidence that persons came and went in and out of the home of defendant without the ceremony of knocking. In the house at the time mentioned were several young negro men and young negro girls, in different rooms. Shortly after defendant went home, the deceased appeared in the house, and very soon thereafter a controversy arose between defendant and deceased as to which was the better man physically, and the undisputed testimony shows that each of them pulled off his coat, and went to fighting with his fists. The deceased was ejected from the house, and went out with one Bright, who was a witness; and, when he passed out of the house, he was without his coat, and, after going a short distance with Bright, he decided that he would return and obtain his coat. Bright went on, and deceased returned to defendant's house, and the evidence shows, when he returned, the defendant was told Smith was outside, when he ran into another room, and, seizing his musket, returned, and said, "I will kill the first one that comes in." Thereupon Caldwell, another negro, grabbed the musket, and expostulated with Taylor, but to no purpose; and, as Smith entered the door, Taylor wrenched the musket away from Caldwell, and exclaimed, "Get away from that door. I will kill the first man that comes in," and immediately fired, and Smith fell dead; thereupon Taylor boasted to Caldwell that he had fired the shot. The coroner was immediately summoned, and examined the body of Smith, but found no weapons upon him. There was some testimony that Smith pushed or kicked the door open as he entered on his return, but there was counter evidence, for the state contradicting this evidence, tending to show that there was no sign of violence to the door, and the locks and latches were uninjured. The instructions given by the court embraced murder in the first and second degrees, manslaughter in the fourth degree, and self-defense.

The instructions for murder in the first and second degrees were in the form often approved by this court, and for that reason are not reproduced here. Indeed, they are not challenged by counsel for defendant. This appeal is based upon the contention that the circuit court misapprehended the law as to the right of a man to defend his dwelling house from an unlawful trespass. To present the point, we here copy the court's instructions, which are so earnestly controverted by defendant: "(6) If the jury find from the evidence that the defendant and deceased engaged in a mutual altercation, and each inflicted blows and violence upon the other in the dwelling house of defendant, and that they were separated from each other during the fight, and the deceased ejected from the house, and the door thereof shut and fastened, and shortly thereafter the deceased either kicked or struck said door, and forced it open, and was in the act of entering said house when the defendant shot and killed him, and, at the time he so shot deceased, defendant had no reasonable cause to apprehend on the part of deceased a design to do him some great personal injury, and there was no reasonable cause for him to apprehend immediate danger of such design being accomplished, then he was not justified in shooting the deceased, but is guilty of murder in one of the degrees or manslaughter in the fourth degree (as explained in other instructions); that is, if he so shot and killed deceased willfully, deliberately, premeditately, and of his malice aforethought, he is guilty of murder in the first degree. If he shot and killed deceased willfully, premeditately, and of his malice aforethought, but without deliberation, he is guilty of murder in the second degree. If he so shot and killed deceased in a heat of passion, resulting from the fight between them had shortly theretofore, and sufficient time had not elapsed after said fight, and before the shooting, for the blood to cool and reason assert its sway, or if sufficient time had elapsed after, and before the shooting, for the blood to cool, and the deceased at the time he was shot was attempting to renew the fight and assault the defendant otherwise than with some deadly weapon, such as a pistol or a knife, and defendant had no reasonable cause to apprehend on the part of the deceased a design to do him some great personal injury, and no reasonable cause to apprehend that there was immediate danger of such design being accomplished, then defendant is guilty of manslaughter in the fourth degree. (7) The court instructs the jury that the defendant had the legal right to eject, or cause to be ejected, from his dwelling house, the deceased, Lee Smith. And the deceased had no right to re-enter the said house against the known wishes and consent of defendant; and if the jury find that the deceased, after being ejected from said house, shortly...