State v. Turner

• Decision Date: 20 December 1912
• Citation: 152 S.W. 313,246 Mo. 598
• Parties: STATE v. TURNER.
• Court: Missouri Supreme Court

152 S.W. 313

246 Mo. 598

STATE v. TURNER.

Supreme Court of Missouri, Division No. 2.

December 20, 1912.

1. CRIMINAL LAW (§ 829) — CUMULATIVE INSTRUCTIONS — REFUSAL.

The refusal of further instructions on reasonable doubt in a murder case was proper, where the court had already fully presented such matter.

2. CRIMINAL LAW (§ 814) — INSTRUCTIONS ON GOOD CHARACTER — EVIDENCE.

Where, in a murder trial, the accused introduced proof of his good conduct, it was not error to instruct on good character, though such proof was offered and admitted for a purpose other than to show good character; good conduct having some probative force to show good character.

3. HOMICIDE (§§ 116, 122) — SELF-DEFENSE — RIGHT.

The right of accused to kill in his own or his brother's defense depended on whether he had reasonable cause to believe, and did believe, that either he or his brother was in danger of death or serious injury, and struck to avert such injury, and not on what a reasonably prudent man would have believed under the circumstances.

4. CRIMINAL LAW (§ 823) — INSTRUCTIONS.

An instruction in a murder case on the right of accused to arm himself need not include the law of self-defense, where such law is fully stated elsewhere in the charge.

5. HOMICIDE (§ 309) — INSTRUCTION ON PROVOCATION — EVIDENCE.

Where, in a murder case, there was evidence that the deceased cursed, threatened, and assaulted accused a short time previously, and treated accused's brother in like manner when he remonstrated with him, and seized his brother about the neck, and, through the exercise of his greatly superior physical strength, was about to do violence to him, when accused made the fatal assault, it was error to refuse to instruct on manslaughter in the fourth degree on the hypothesis that the killing was without malice and in the heat of passion aroused in accused by the assault upon his brother.

6. HOMICIDE (§ 122) — DEFENSE OF ANOTHER — RIGHT.

Where a person sees and hears all that is said and done in a difficulty in which his brother is in danger, he has the same right to defend his brother as his brother has to defend himself.

7. HOMICIDE (§ 196) — EVIDENCE — DEFENSE OF ANOTHER — BELIEF OF ACCUSED.

Since, under Rev. St. 1909, § 4451, homicide is justifiable when committed by any person in the lawful defense of his brother when he believes, with reasonable cause, that danger to his brother is imminent, it was error in a trial for murder, where accused claimed to have acted in defense of his brother, to exclude his testimony that he believed his brother's life in danger.

8. HOMICIDE (§ 196) — EVIDENCE — THREATS OF DECEASED.

Evidence in a murder case of the arrest of deceased at the instance of defendant's brother was competent to show the basis of threats made by deceased.

9. HOMICIDE (§ 196) — EVIDENCE — ARREST OF DECEASED.

Such evidence was properly limited, however, to proof of the arrest where there was nothing in the offense for which deceased was arrested tending to indicate any hostility toward defendant or his brother.

Ferriss, J., dissenting in part.

Appeal from Circuit Court, Howard County; A. D. Burnes, Special Judge.

Kelly Turner was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Sam C. Major, of Fayette, for appellant. Elliott W. Major, Atty. Gen., Charles G. Revelle, Asst. Atty. Gen., A. W. Stewart, of Annada, and Paul P. Prosser, of Fayette, for the State.

BLAIR, C.

Appellant, his brother Dudley Turner, and Worth Lee were jointly indicted in the Howard circuit court for murder. Appellant was tried separately, convicted of murder in the second degree, and sentenced to the penitentiary for a term of 10 years. From that sentence this appeal was taken.

The killing occurred at the town of New Franklin about 11 p. m. August 27, 1910. Johnson, the deceased, was a very large man, being 6 feet 6 inches tall, weighing 280 pounds, and possessing unusual strength. During the afternoon of August 27th he, with two companions, Carson and Miller, had been drinking beer and whisky, but the evidence leaves it doubtful to what extent he was affected by his indulgence, though the evidence for the state tends to show he was conducting himself peaceably at all times. Appellant and his brother and Lee came into New Franklin between 4 and 5 o'clock, an hour or so after deceased arrived there, and there is some evidence Dudley Turner had been drinking, but there is no evidence he was under the influence of liquor at the time of the tragedy. In view of the character of the questions presented, it is unnecessary to set out in detail the testimony of the state's witnesses. There was some, though not much, evidence tending to show a conspiracy on the part of the three defendants to attack deceased, but there is little, if anything, unless it be the event, to indicate the purpose of the conspiracy, if it existed, whether felonious or otherwise. At some time that evening Dudley Turner had supplied himself with what the witnesses term a wagon hammer, but it does not appear when or where he did so, nor that appellant was aware his brother was armed. So far as concerns the occurrence at the time of the killing, there is some disagreement among the witnesses for the state, owing largely to the excitement, the crowd, and the darkness. Without further discussing or attempting to harmonize these discrepancies, it is sufficient for the purposes of this appeal to say there was, on the part of the state, substantial evidence that Dudley Turner accosted deceased, telling him he wanted to see him, and, when the latter approached, called him to account for alleged abuse of appellant earlier in the evening, called him vile names, told him he would hit him with his hammer, seized him by the hand, and twice struck him on the shoulder. At this juncture appellant, who had been standing near cursing and swearing, stepped close to deceased, and stabbed him in the abdomen, inflicting a wound from which death ensued in a few days. According to some of the witnesses, deceased during this time made no effort to defend himself in any way, and said nothing save that he did not want to fight, except that, when Dudley Turner struck him, deceased told him not to strike him again. The evidence for appellant in several particulars corroborated by that for the state tended to show deceased had long borne a grudge against the Turners, due to the fact James Turner once had him arrested. There was evidence he had made threats he would "get revenge on the Turners," and but a short time before he was killed in referring to defendants had said, in the presence of several people, he could "clean up that gang very easily." According to witnesses for both the state and appellant, there was no truculence in Dudley Turner's manner or tone when he first accosted deceased, and told him he wanted to see him, and the evidence for appellant is that, when deceased came to where Dudley Turner was standing, the latter asked him why he had cursed and abused appellant, adding he did not want any trouble, and was not going to have any trouble; that deceased replied, "You are breeding trouble, yourself." Dudley Turner also said to deceased that he had cursed appellant "for everything he could think of," and added he "wouldn't stand for any man to abuse his mother." Deceased then began cursing Dudley Turner, called him a "God damn four-eyed son of a bitch," and struck at him. As he did so the latter caught deceased's arm and struck him.

Dudley Turner testified appellant had told him a short time before the killing occurred that he had been offered whisky by deceased and Carson, and, upon his refusal to drink, they had cursed him and called him vile names, and threatened to "pour it down him"; that, when appellant started away, deceased followed, seized his arm, and jerked him back, and told him they would "whip him right there" if he "opened his damned head," Deceased, so appellant told Dudley, added that they — himself and Carson — were going to "get" the Lees and Turners before they left town. Dudley Turner's testimony was, further, that he next saw deceased near Clark's store, where the horses of both were hitched, and that Miller and Carson were also there; that he told deceased he would like to speak to him a minute, and, when deceased came to him, he asked why he had abused appellant, made him drink whisky, and called him a son of a bitch. Deceased said he meant it; had "had it in for" the brothers a long time. On being charged again with calling appellant a "little short son of a bitch," deceased said, "Yes; and you are a four-eyed son of a bitch. Help yourself." Dudley Turner says he replied: "Never mind that. I have got as good a mother as anybody has got. I believe in sticking up for her." And thereupon deceased struck at him, and then he, Turner, hit deceased with the wagon hammer, and the latter "clinched him around the neck" with his left arm, and "was fixing to hit him or cut him, he didn't know which." He was holding deceased's right hand with his own left, and at that moment appellant ran up and stabbed deceased. As the latter turned, Dudley Turner, according to his testimony, "kind of hit him on the shoulder" again.

Appellant, who was 22 years old when the killing occurred, is small, weighing 125 pounds. He testified that a short time before he stabbed deceased the latter called him, and offered him whisky, which he declined to drink, when deceased called him a "God damned son of a bitch," and told him he would drink it, or he, deceased, would pour it down him. Thus urged, he drank, and deceased assumed a threatening attitude, and with curses declared he and Carson were going to "get" the Turners and Lees before they left town, adding he had not forgotten the time James Turner had him arrested. Appellant says that, when he started away, deceased followed, seized his arm, and, with curses and vile epithets, told him, if he opened...