State v. Wilson

• Decision Date: 09 May 1912
• Citation: 147 S.W. 98
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

147 S.W. 98

STATE v. WILSON.

Supreme Court of Missouri, Division No. 2.

May 9, 1912.

1. HOMICIDE (§ 276)—PROSECUTION — JURY QUESTION.

In a prosecution for murder, where it appeared that accused struck deceased with a rock and ran, that deceased had pursued and attacked him, and that accused then killed deceased, the question whether accused's withdrawal was in good faith so as to revive his right of self-defense was for the jury.

2. HOMICIDE (§ 309) — PROSECUTIONS — INSTRUCTIONS.

In a prosecution for murder, where the evidence tended to show that accused struck deceased with a rock and ran, that deceased pursued him, and attempted to strike him with a rock or brick, which flew from his hand after the first blow, and that accused broke away and shot deceased, an instruction on manslaughter in the second degree, as defined by Rev. St. 1909, § 4461, providing that every person who shall unnecessarily kill another while resisting an attempt to commit a felony or do any other unlawful act after such attempt shall fail shall be deemed guilty of manslaughter in the second degree, was improperly refused; the deceased's assault with a weapon having failed before the killing.

3. HOMICIDE (§ 79)—MANSLAUGHTER—"MANSLAUGHTER IN FOURTH DEGREE."

Where deceased pursued and attacked accused, who had fled after striking deceased with a stone, accused's act in killing deceased who had assaulted him and struck him was

manslaughter in the fourth degree, the assault and battery being sufficient provocation to reduce the homicide to that offense, which is the intentional killing of a human being in a heat of passion on a reasonable provocation without malice and premeditation, and under circumstances not rendering it excusable or justifiable.

4. HOMICIDE (§ 309)—TRIAL—INSTRUCTIONS —MANSLAUGHTER IN FOURTH DEGREE.

In a prosecution for murder, where the evidence tended to show that accused and deceased were enemies, accused having threatened to slay deceased because of his attentions to accused's wife, that accused, after being insulted by deceased, struck him with a rock and ran, and that accused shot and killed deceased, who pursued and assaulted him, an instruction on manslaughter in the fourth degree was improperly refused, the assault and battery being sufficient provocation to reduce the offense to that grade; the question of the existence of deliberate malice in the mind of accused being one for the jury.

Appeal from Circuit Court, Daviess County; A. B. Davis, Judge.

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

A. G. Knight and Dudley & Selby, for appellant. The Attorney General and Campbell Cummings, Asst. Atty. Gen., for the State.

BLAIR, C.

Having been convicted in the circuit court of Daviess county of murder in the second degree and sentenced to 25 years in the penitentiary, defendant appealed.

The deceased, Alonzo Dugger, and the defendant, Turner Wilson, had lived some years in the town of Coffey, Daviess county, but about a year prior to the killing defendant had moved away, and in May, 1910, took up his residence in Gilman City, some six or seven miles from Coffey. On August 16 and 17, 1910, a picnic or street fair was in progress in Coffey, and both defendant and deceased were in attendance. It appeared from the testimony that bad blood had existed between the two by reason of defendant's belief (apparently well grounded) that illicit relations existed between deceased and defendant's wife. The evidence tended to show that defendant had made threats of violence against deceased, some remote and some more recent. On the day of the tragedy there was a large crowd in Coffey. Near the intersection of the two principal streets, the usual stands had been erected close to the sidewalks leading from the crossing and south of the intersection mentioned, and on the west side of the street running north and south, close to the sidewalk, was a lemonade stand, and south of it there was what is designated as a "keg stand," a passageway between the two leading from the sidewalk eastward into the street. Across on the east side of the street were several other stands, among which was one referred to by the witnesses as the peanut stand. It was small, and stood opposite the keg stand. Other stands were north and south of it, respectively. About these stands and others and in the street between, on August 17th, crowds were collected, making purchases, indulging in various amusements or engaged in conversation. About 2 p. m. deceased was standing near the west side of the keg stand, and about 10 feet south of its northwest corner, when defendant, who had been observed a few moments before at the southwest corner of the street intersection standing beside a telephone pole at that point where he picked up something, was seen to have advanced to a point about 8 feet from deceased, at whom he attempted to throw a piece of brick. A bystander struck defendant's hand or arm, and the brick fell to the ground, but defendant immediately took another like object from his left hand, and this time threw and struck deceased, whose back was partially turned, and who was apparently oblivious of what was transpiring. The missile made a wound near the base of deceased's skull, concerning the seriousness of which the physicians disagreed somewhat, but it is clear from their testimony that it was not regarded as a fatal wound. Deceased was not knocked down by this blow, but it caused him, to use the language of some of the witnesses, to "stoop" or "duck" forward, and there is some evidence he was heard to groan. He immediately recovered himself, turned, and saw and started for defendant, who thereupon ran eastward between the lemonade and keg stands, and thence into the street, pursued by deceased. The witnesses all agree that when deceased turned, after being struck as stated, and started running up the sidewalk after defendant, the latter turned and ran from him into the street. There are some discrepancies as to the rate of speed at which pursued and pursuer proceeded, and some differences of opinion as to what effect the blow deceased had received seemed to have upon his powers of locomotion, as well as to whether defendant stopped before deceased overtook him, and at what point defendant first attempted to draw his pistol.

James Wright testified that he saw defendant "run out into the middle of the street like, and Mr. Dugger after him, and Wilson (defendant) kind of stopped, and Mr. Dugger caught up with him, and they clinched, and in just a second or two" he heard a shot; that deceased then broke loose from defendant, "and raised right up this way (illustrating), and threw his hands right up this way, and kind of crow-hopped back from him just this way," and defendant fired a second shot. On cross-examination this witness stated that the first he saw of defendant he was running into the street with deceased in pursuit; that deceased caught up with him, and they grappled and began strugling, turning around; that he did not see deceased strike defendant or try to do so. He further stated (and there is no dispute on the point) that deceased was larger than defendant, and could have borne him down with his weight, but witness did not see him attempt to do so. This witness was about 60 feet distant from the point where the first shot was fired, and testified that there was a crowd around the men which prevented him from seeing all that happened.

James Stith testified that deceased, after being struck by the missile thrown by defendant, "pulled his hat over his head and struck up the walk after" defendant, who ran out between the stands into the street, and witness stepped aside to let deceased, who was pursuing defendant, pass through after him. As defendant ran he looked back, and, when he saw deceased coming, he put his hand in his pocket, and went on, and deceased "ran up to him, and threw his arm over him that way [indicating], and Wilson looked as though he ducked down like that, and, when he did that," witness heard the report of the revolver, but couldn't see the men. Deceased then straightened up, and witness saw defendant fire a second shot. Deceased, when he caught up with defendant, tried to catch him, or "made a kind of lick or swipe at him," and defendant "ducked to escape that lick," and put his hand against deceased and tried to push him away. Witness said they were "right together," and there was "rather a struggle, when he threw his hand around that way," and they "swung around a little bit in the struggle" until defendant was "more on the north than he was right at the time he [deceased] caught up with him." This witness also testified that defendant had got across close to the little peanut stand just as deceased caught him, and was, as the witness recollected it, going along backward at that moment.

F. M. Miller, who was within two or three feet of deceased and defendant when the first shot was fired, testified that he was standing near the peanut stand and heard a sound as of some hard object striking a board, and then saw defendant come out into the street "in a kind of a trot like," with deceased in pursuit. When defendant reached the stands across the street, he looked around and checked up as deceased caught up with him. Cross-examination: "Q. Dugger outran him and caught him? A. He [defendant] kind of stopped when he came to those stands. Q. He ran up into the stand? A. Not right up to them, but near them. Q. Which hand did he catch him with? A. Of course, you spoke—he throwed his right hand or left hand over his shoulder. Q. Around his neck? A. It just went kind of raised over his shoulder, down just that way. Q. Show it on me? A. He kind of ran up this way, and fell against him, and struck over him like that [illustrating on counsel]. Q. Struck at him twice? A. He didn't hit him. He struck over him. Q. He didn't hit him because he struck over him? A. Yes...