State v. Wilson

• Citation: 147 S.W. 98,242 Mo. 481
• Parties: THE STATE v. TURNER WILSON, Appellant
• Decision Date: 09 May 1912
• Court: Missouri Supreme Court

147 S.W. 98

242 Mo. 481

THE STATE v. TURNER WILSON, Appellant

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Daviess Circuit Court. -- Hon. A. B. Davis, Judge.

Reversed and remanded.

A. G Knight and Dudley & Selby for appellant.

(1) Where a defendant withdraws from a conflict in good faith begun by him, intending to abandon it, his right of self-defense will revive notwithstanding he may have begun the conflict with a felonious, or even a murderous, intent. And where, after such withdrawal, in a subsequent encounter between deceased and defendant, deceased inflicts blows upon defendant, such blow or an assault of any kind upon the person, furnishes the lawful provocation, which in every instance reduces the homicide to manslaughter. State v Heath, 221 Mo. 588; State v. Cable, 117 Mo. 380; State v. Lockett, 168 Mo. 489; State v. Partlow, 90 Mo. 608; State v. Weekly, 178 Mo. 413; State v. Wensell, 98 Mo. 137. It is a question for the jury to decide, whether the defendant withdrew in good faith from the conflict, and likewise a question for their decision, whether there was lawful provocation, sufficient to excite a passion to reduce the homicide to manslaughter, and the testimony of the defendant alone furnishes a basis for an instruction on manslaughter in the fourth degree, and its refusal would constitute error. State v. Heath, 221 Mo. 588; State v. Darling, 199 Mo. 169; State v. Sebastian, 215 Mo. 80; State v. Banks, 73 Mo. 592; State v. Wensell, 98 Mo. 137. The provocation necessary to arouse the heat of passion which would result in reducing the crime to manslaughter may be an assault, or any sort of personal violence. A provocation consisting of personal violence is sufficient. State v. Heath, 221 Mo. 588; 1 East's Pleas of the Crown, 233; 4 Blackstone's Com., 201; State v. Wieners, 66 Mo. 13; State v. Starr, 38 Mo. 271; State v. Branstetter, 65 Mo. 149; State v. Hill, 69 Mo. 451; State v. Elliott, 98 Mo. 150; State v. Gartrell, 171 Mo. 516; State v. Sebastian, 215 Mo. 58.

Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.

(1) Was it error for the court to fail to give an instruction for manslaughter in the fourth degree under section 4468, Revised Statutes 1909? According to appellant's evidence, while he was standing at the corner at the telephone pole, deceased came along and gave him a shove, which was coupled with insulting words; that thereupon, all the wrongs deceased had done him in regard to the former's relations with the latter's wife, flashed in his mind, and he looked for the deceased, and, on discerning him in front of the "keg game," where he was standing watching it, appellant stooped and picked up two half bricks, or rocks, he doesn't know which, started to throw one at appellant, and his arm being caught or knocked, he threw the other and hit deceased in the back of the head. He had testified on cross-examination that he had his mind made up before that time to shoot deceased if he caused him any trouble that day. He further testified that deceased stooped and picked up, presumably the brick, or rock, with which he was hit, and started for him; that "It seemed like something came over him, he wanted to get away from there;" that he ran to the east side of the street and stopped "as it was about as far as it seemed he could go;" that he could have crowded through, but he didn't want to run over anybody to do it;" that the deceased, on coming up to him, took hold of him with one hand and struck at him with the other, the blow falling upon his shoulder; that that part of the deceased's arm between the elbow and the wrist fell upon his shoulder, and, as it struck his shoulder, something that had been in deceased's hand fell to the ground; that thereafter he pulled his gun and shot. Manslaughter in the fourth degree has been defined, under the above statute, by our courts. 21 Cyc. 736, 737; State v. O'Hara, 92 Mo. 59; State v. Jones, 79 Mo. 441; State v. Ellis, 74 Mo. 207; State v. Holme, 54 Mo. 143; State v. Gassert, 4 Mo.App. 44; State v. Sharp, 233 Mo. 269; State v. McKenzie, 228 Mo. 385; State v. Sebastian, 215 Mo. 58; State v. Darling, 199 Mo. 168; State v. Todd, 194 Mo. 377; State v. Weakly, 178 Mo. 413; State v. McKenzie, 177 Mo. 699; State v. Gartrell, 171 Mo. 489; State v. Reed, 154 Mo. 122; State v. Meadows, 156 Mo. 110; State v. Heath, 237 Mo. 255; State v. Gordon, 191 Mo. 114; State v. Ashcraft, 170 Mo. 409; State v. Diller, 170 Mo. 1; State v. Sumpter, 153 Mo. 436; State v. Garrison, 147 Mo. 548; State v. Kindred, 148 Mo. 270; State v. Bowles, 146 Mo. 6; State v. Rose, 142 Mo. 418; State v. Reed, 137 Mo. 125; State v. Hermann, 117 Mo. 637; State v. Bulling, 105 Mo. 204; State v. Brown, 64 Mo. 367; 21 Cyc. 737, 738; State v. Bates, 239 Mo. 507; Stephenson v. U.S. 162 U.S. 320. The sufficiency of the provocation to excuse or extenuate murder is generally a question of law. 21 Cyc. 1028; State v. Heath, 221 Mo. 565; State v. Howard, 102 Mo. 142; State v. Elkins, 101 Mo. 344; State v. Berkley, 92 Mo. 41; State v. Partlow, 90 Mo. 608; State v. Ellis, 74 Mo. 207; State v. Packwood, 26 Mo. 340; State v. Jones, 20 Mo. 58; State v. Dunn, 18 Mo. 419. Whether such provocation or heat of passion existed in the particular case is one of fact. 21 Cyc. 1028; State v. Hanson, 231 Mo. 14; State v. Heath, 221 Mo. 565; State v. Ellis, 74 Mo. 207. The Cyc. lays down as a better rule that the question of reasonable cooling time is for the jury. 21 Cyc. 1028; 1 Wharton's Crim. Law (10 Ed.), sec. 480; 2 Bishop's New Cr. Law (8 Ed.), secs. 711, 712; State v. Wood, 97 Mo. 31. Under our cases the words "legal," "lawful," "adequate" and "reasonable provocation" are synonomous. State v. McKenzie, 177 Mo. 699; State v. Berkley, 109 Mo. 667; State v. Bulling, 105 Mo. 204. Whether or not the brick or rock used was a deadly weapon is shown by the kind and effect of the wound inflicted with it, which showed an intention to do serious bodily harm. State v. Bowles, 146 Mo. 6. Some of our cases seem to recognize an excited state of mind produced by some lawful provocation, such as a blow, or an assault of any kind upon the person. State v. Todd, 194 Mo. 377; State v. McKenzie, 177 Mo. 699; State v. Pollard, 139 Mo. 220; State v. Ellis, 74 Mo. 207; State v. Branstetter, 65 Mo. 149; State v. Starr, 38 Mo. 277. In one case, at least, the court has recognized the heat of passion, engendered by the wrongful removal of defendant's fence. State v. Mathews, 148 Mo. 185. On the other hand, our court has held in a number of cases, that the lawful provocation must consist of some personal violence, and unless it amounts to personal violence or injury to the defendant, it cannot avail. State v. Gartrell, 171 Mo. 489; State v. Sumpter, 153 Mo. 436; State v. Goddard, 162 Mo. 198; State v. Meadow, 156 Mo. 110; State v. Smith, 114 Mo. 407; State v. McKenzie, 228 Mo. 385; State v. Sneed, 91 Mo. 552; State v. Barrett, 240 Mo. 161; State v. Reed, 154 Mo. 122; 21 Cyc. 741, 743, 746-49; State v. Kloss, 117 Mo. 591; State v. Baker, 146 Mo. 591; State v. Lewis, 118 Mo. 79; State v. Wilson, 98 Mo. 440; State v. Davidson, 95 Mo. 155; State v. Partlow, 90 Mo. 608; State v. Gilmore, 95 Mo. 554; State v. Dunn, 80 Mo. 681; State v. Snell, 78 Mo. 240; State v. Christian, 66 Mo. 138; Strong v. State, 85 Ark. 536; Armsworthy v. State, 49 Tex. Cr. 622. (2) Where malice was harbored by the accused against the deceased, and a trivial provocation was received by the accused, such provocation is to be disregarded unless it is shown that the murderous purpose was abandoned before the homicidal act was committed; the presumption in such case being that the killing was induced by the malice and not by the passion produced by the provocation. State v. Dettmer, 124 Mo. 426. We submit that there is no evidence of a withdrawal by appellant. State v. Heath, 237 Mo. 255; 1 Wharton's Crim. Law, sec. 486; McClain's Crim. Law, sec. 310.

BLAIR, C. Roy, C., concurs.

OPINION

BLAIR, C.

Having been convicted in the circuit court of Daviess county of murder in the second degree and sentenced to twenty-five 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,...