State v. Wilson

• Decision Date: 24 June 1889
• Citation: 98 Mo. 440,11 S.W. 985
• Parties: STATE v. WILSON.
• Court: Missouri Supreme Court

11 S.W. 985

98 Mo. 440

STATE v. WILSON.

Supreme Court of Missouri.

June 24, 1889.

MURDER — SELF-DEFENSE — INSTRUCTIONS — MANSLAUGHTER.

1. On a trial for murder, where there is no evidence that the killing was done in self-defense, except defendant's testimony that, during an altercation with deceased, the latter raised a shovel and said, "The way is open; pitch in," when the fatal blow was struck, but it does not appear that deceased was in striking distance, or offered to strike, defendant cannot criticise instructions on self-defense, as none at all were called for.

2. It appeared that defendant and deceased engaged in a sudden quarrel, when defendant, who

had a hoe in his hand, with which he had been working when the quarrel began, turned it round and struck deceased with the handle, instead of the blade. Deceased, at the time, had a shovel in his hand. Held, that an instruction should have been given on manslaughter in the third degree, which is defined in Rev. St. Mo. § 1244, as "the killing of another in a heat of passion, without a design to effect death, by a dangerous weapon." BARCLAY and BRACE, JJ., dissenting.

3. As the jury might consider the hoe-handle not a dangerous weapon, they should have been instructed on manslaughter in the fourth degree, which is "the involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion." Rev. St. Mo. § 1249. BARCLAY and BRACE, JJ., dissenting.

Appeal from circuit court, Mercer county; G. D. BURGESS, Judge.

Stephen Perry, M. F. Robinson, and H. J. Alley, for appellant. The Attorney General, for the State.

BRACE, J.

The defendant was indicted in the circuit court of Mercer county for murder in the first degree, for killing James Franklin Graves on the 9th day of September, 1887, and upon his trial was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a term of 35 years, from which judgment he appeals. It appears from the evidence that Wilson and Graves were neighbors, and men of good character; that, for some months previous to the homicide, feelings of hostility existed between them, which manifested itself on several occasions, the particulars of which it will not be necessary to notice. The matter of difference that seems to have immediately led up to the difficulty will only be briefly stated. It appears that a public road ran along the premises of the deceased a short distance from his house; that the defendant owned a strip of ground running along the road between the line of the deceased and the road which had been used by the deceased as a road; that the defendant wanted him to change his road over this strip, but that deceased neglected to do it, and the defendant, to prevent him using his strip of land as a road, had incumbered it with wood and brush, making it inconvenient for deceased to get to the public road over it, as he had formerly done; that, on the morning of the homicide, deceased hitched up his wagon and team and drove down to his fence at another point on the public road, where he had been in the habit of going out into the road; that, at this point, defendant, who was road overseer, with seven or eight other men, was at work on the road, and they had already ploughed and scooped out a ditch alongside the road, and between it and the fence of the deceased, from which it was distant four or five feet, about three feet wide and from eight to ten inches deep. Defendant was in the road beside the ditch with a hoe in his hands, the handle of which was of a white hickory sprout cut the preceding spring. When the deceased reached the fence, he got down from his wagon, and commenced letting down the fence, when the defendant said to him, "Frank, we have made you a crossing here," to which deceased replied, "You think you are damned smart in making a ditch there;" and, after he laid down the fence, he came out on the road, got a shovel from one of the men, recrossed the ditch, and commenced sloping off the side of the ditch to make a crossing for his wagon. Defendant said: "Don't you fill up that ditch. If you do, I will make you clean it out." Deceased said: "I am not filling it up." Defendant said: "If you fill it up, I will make you pay for it." Deceased said: "You will not make me do anything." Defendant then said: "You son of a bitch, I understand that you have been carrying a revolver for me." Deceased said: "It is not so. Whoever said I have been carrying a revolver for you, or any one else, tells a damned lie." Defendant stepped across the ditch, and said: "Do you mean to call me a damned liar?" Deceased said: "No, 1 didn't mean to call you a damned liar, but whoever said I carried a revolver for you or any other man is a damned liar. You are in the habit of it." Defendant then raised his hoe in a striking attitude, with the blade up, saying, "You call me a damned liar then?" and changing the hoe in his hand, pole up, repeated, "Do you say it?" Deceased said he "would say what he damned pleased," and defendant struck deceased on the right side of the head with the hoe-handle, and knocked him down, and struck or pushed him with the hoe after he was down. In the scuffle, deceased got hold of the hoe-handle, and defendant, in trying to pull it away from him, raised him up; and, after he got up, deceased got hold of a yoke-neck that was in the wagon, and struck the defendant with it, and knocked him down. They then clutched, when they were parted by some of the persons present. During the altercation, and up to the time the deceased was struck, he had the shovel in his hand, and was engaged in shoveling dirt with it, and was so using it when he was struck by the defendant. This is the substance of the evidence of the seven witnesses who were present at the difficulty; and, while no two of them gave exactly the same account of the transaction, they all agreed upon the main features of the transaction, except that one of them testified that, at one time during the altercation, deceased, when the defendant had the hoe drawn, had the shovel up by his head. He did not see the fatal blow struck, and those who did, testify that the deceased had the shovel on the ground when he was struck. The defendant gave the following account of what transpired immediately preceding and up to the time when the fatal blow was struck: "We were at work. Graves came up and spoke. Think he said: `You are damned smart.' I said I did not know about the smart part; `I am trying to fix you a good road.' Graves jumped out of the wagon, unhitched his team, let down part of the fence, got a shovel, and said: `I will fix this.' Took shovel, and throwed dirt at my feet got out of the bank. I thought he was going to fill the ditch up. I said: `Frank, I have heard you have been carrying a pistol for me.' He said: `It is a God damned lie.' I said: `I don't want you to say that any more.' Graves raised the shovel to his head, like that, and said: `The way is open; pitch in.' I hoisted the hoe. I seen that he was mad, and I — I did not want any trouble. My intention was not to hurt him. I would not have done it for anything in the world. I just wanted to keep him from killing me. When Graves drew the shovel I drew the hoe. I struck him to keep him from killing me." On his cross-examination the defendant testified that deceased called him a "liar" and a "son of a bitch," and that he only struck him one blow. After the parties were separated, the deceased, not thinking he was seriously injured, undertook to resume his journey; had gone but a short distance when he became sick, and stopped at the house of a neighbor, whence he was taken home, and died that night from blood clot on the brain, caused by a fracture of his skull from the blow that defendant struck him. The next day the defendant went and delivered himself up to the authorities.

In the indictment the offense is well charged, and no exception was taken to the action of the court in the admission and rejection of evidence; and the only ground for reversal urged is upon the instructions. The court instructed on murder in the first and second degrees, on manslaughter in the second degree, and on self-defense. The instructions on murder in the first degree are such as have heretofore received the approval of this court; but, as the defendant was not convicted of that offense, it will not be necessary to notice them. State v. Snell, 78 Mo. 240. Nor will it be necessary to set out or criticise the instructions on self-defense, as the evidence fails to disclose any self-defense in the case. Self-defense is a plea of necessity. The evidence fails to disclose that there was any necessity apparent to the defendant for taking this life in order to save his own, or his person from great personal injury. Antecedent hostile expressions and threats will not alone furnish such evidence. State v. Rider, 95 Mo. 474, 8 S. W. Rep. 723; State v. Wilson, 85 Mo. 134; State v. Harris, 59 Mo. 550; State v. Harris, 73 Mo. 287; State v. Eaton, 75 Mo. 587. The danger must be apparent and impending, and one from which defendant cannot, without further hazard apparently,...