State v. Williams

• Decision Date: 31 December 1968
• Docket Number: No. 53481,53481
• Citation: 442 S.W.2d 61
• Parties: STATE of Missouri, Respondent, v. Charlie WILLIAMS, Appellant.
• Court: Missouri Supreme Court

Page 61

442 S.W.2d 61

STATE of Missouri, Respondent, v. Charlie WILLIAMS, Appellant.

No. 53481.

Supreme Court of Missouri, En Banc.

Dec. 31, 1968.

As Modified June 25, 1969.

Edwards & Robison, by Jack O. Edwards, Sikeston, for appellant.

Norman H. Anderson, Atty. Gen., Jefferson City, William O. Sawyers, Jr., Special Asst. Atty. Gen., St. Joseph, for respondent.

STOCKARD, Commissioner.

Defendant Charlie Williams was charged under the second offender act, Section 556.280, RSMo 1959, V.A.M.S., with murder, second degree, for killing Joe Matthews. He was found guilty by a jury of manslaughter, sentenced by the court to imprisonment for two years, and he has appealed.

Defendant admits that a submissible case of murder, second degree, was established by the evidence. Over his objection the trial court gave an instruction on manslaughter. Defendant contends on this appeal that by reason of the rule announced in State v. Bongard, 330 Mo. 805, 51 S.W.2d 84; State v. Biswell, 352 Mo. 698, 179 S.W.2d 61; State v. Haynes, Mo., 329 S.W.2d 640, and other cases, the 'evidence did not warrant a conviction of manslaughter.'

Briefly stated, the facts most favorable to the action of the trial court in giving an instruction on manslaughter are as follows: Defendant entered the house of Mrs. Esque Williams at her invitation, or at least with her consent. Joe Matthews was sitting in a chair in the living room. Mrs. Williams said, apparently to Matthews, 'That is him, partner. Get him,' and then ran out the back door of the house. Without any further word by anyone, Matthews drew a pistol and fired one shot at defendant but missed. Defendant then drew his pistol and shot and killed Matthews.

In State v. Haynes, supra, this court held that when a person is charged with murder he is entitled to and the court is required to give an instruction on manslaughter only if there is 'substantial evidence * * * tending to show 'lawful provocation," and that 'In determining what constitutes 'lawful provocation' reducing the degree of homicide from murder to manslaughter this court has consistently required evidence of physical violence to the person, that is, a battery.' It was also said in the Haynes case that 'Violence to the person is the standard exacted by the law as affording the basis for the inference of that heat of passion which reduces the grade of the crime in a homicide case from murder to manslaughter.' Two exceptions to the above rule are mentioned, neither of which is here material. Cases cited include State v. Kizer, 360 Mo. 744, 230 S.W.2d 690; State v. Edwards, Mo., 226 S.W.2d 592; State v. Littlejohn, 356 Mo. 1052, 204 S.W.2d 750; State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38; State v. Biswell, 352 Mo. 698, 179 S.W.2d 61; and State v. Bongard, 330 Mo. 805, 51 S.W.2d 84. The last case quoted from and relied on State v. Starr, 38 Mo. 270. The above cases pertain to the refusal of the trial court to instruct on manslaughter, but as pointed out in State v. Haynes, supra, if there is evidence authorizing the instruction the trial court is required to give it even though not requested. Defendant's contention here, is that pursuant to the rule in the above cases, the evidence in this case did not authorize the giving of an instruction on manslaughter.

Prior to 1919, and at the time State v. Starr was written, the general statute on manslaughter, designated as manslaughter in the forth degree, provided that 'Every other killing of a human being, by the act * * * of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this chapter to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.' (Emphasis added.) See Gen.Stat. of Mo. 1866, Chap. 200, § 18. The above cited cases correctly state the common law rule as to when a person charged with murder is entitled to an instruction on manslaughter. State v. Starr, supra, was written when the statutory definition of manslaughter adopted the common law definition as above set forth, and subsequent cases announcing the rule as set forth in State v. Haynes rely on State v. Starr or cases which follow it.

By Laws of Missouri, 1919, at p. 256, the general statute on manslaughter was changed to read as follows: 'Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.' This is the present statutory definition, § 559.070, RSMo 1959, V.A.M.S., and it is not the definition of manslaughter at common law.

In State v. Clark, Mo., 412 S.W.2d 493, the defendant was found guilty of murder, second degree, and on appeal challenged the instruction on manslaughter. The court quoted the definition of manslaughter in Laws of Missouri 1919, p. 256, and then quoted from State v. Gore, 292 Mo. 173, 237 S.W. 993, 997, as follows: "All reference to manslaughter at the common law was omitted in the act of 1919. Every killing of a human being is now manslaughter unless done deliberately, premeditatedly, or maliciously, or under circumstances found by the jury to be justifiable or excusable. This statutory definition does away with 'heat of passion' as a necessary element of the crime, and such element need no longer be included in an instruction defining the facts necessary for the jury to find in order to return a verdict of guilty of manslaughter." See also State v. Frazier, 339 Mo. 966, 98 S.W.2d 707. In the following recent cases convictions of manslaughter have been sustained on the basis of the definition of manslaughter in § 559.070, supra, without discussion of or a finding that the evidence met the test set forth in State v. Haynes, supra. State v. Kukovich, Mo., 380 S.W.2d 324; State v. Curry, Mo., 372 S.W.2d 1; State v. Ross, Mo., 371 S.W.2d 224; State v. Richardson, Mo., 364 S.W.2d 552; State v. McNew, Mo., 353 S.W.2d 571; State v. Brookshire, Mo., 353 S.W.2d 681; State v. Payne, Mo., 342 S.W.2d 950. We note that in numerous other cases instructions on manslaughter which follow the language of § 559.070, supra, have been approved, even though they do not submit to the jury the element declared to be essential in State v. Haynes. See State v. Washington, Mo., 368 S.W.2d 439; State v. Baxter, 344 Mo. 1034, 130 S.W.2d 584; State v. Bradford, 324 Mo. 695, 24 S.W.2d 993; State v. Gore, supra.

There is but one definition of manslaughter in this state, and that is contained in § 559.070, supra. There cannot properly be one standard as to the evidence required to authorize or require the giving of an instruction on manslaughter when a person is charged with murder, and a different standard as to the sufficiency of the evidence to support a conviction of manslaughter. For this reason we cannot agree that the standard announced in State v. Haynes as to the evidence required to authorize the giving of an instruction on manslaughter is correct. The proper standard is whether there is evidence to warrant a finding by a jury that defendant was guilty of manslaughter as that offense is defined by § 559.070, supra.

'The general rule is that a presumption of murder in the second degree arises from an intentional killing of a human being by another where a deadly weapon is used by him at a vital part of the body, absent proof of other facts tending to show deliberation to raise such killing to first degree murder, or to show want of premeditation and malice to reduce the killing to manslaughter, or to show that such killing was excusable or justifiable.' (Emphasis added.) State v. Snow, 293 Mo. 143, 149, 238 S.W. 1069, 1071. See also State v. Goodwin, Mo., 352 S.W.2d 614, 619; State v. Eason, 322 Mo. 1239, 18 S.W.2d 71, 76; and State v. McCracken, 341 Mo. 697, 108 S.W.2d 372, 374. We emphasize that there must be proof of facts tending to show want of premeditation and malice to warrant an instruction on manslaughter. In this case there was such proof. From the facts supported by substantial evidence, the jury could find that when Matthews suddenly shot at defendant at close range without warning, defendant's firing back was without malice, and certainly without deliberation. Our conclusion is that the evidence authorized an instruction on manslaughter, and that the trial court did not err in giving the instruction over defendant's objection.

The remaining point in defendant's brief is that the trial court erred in permitting the state 'to put on rebuttal...