The State v. Adler
| Decision Date | 07 November 1898 |
| Citation | 47 S.W. 794,146 Mo. 18 |
| Parties | The State v. Adler, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson County Criminal Court. -- Hon. John W. Wofford Judge.
Reversed and remanded.
Blake L. Woodson and Isaac B. Kimbrell for appellant.
(1) Instruction 10 is erroneous, in that it limits defendant's right of self-defense to the assault made by deceased alone upon him, and leaves out of consideration his right to use a weapon, if necessary, to protect himself from harm threatened by the mob of angry and excited men, who armed with a knife, a revolver, and bricks and stones, were aiding and acting in concert with deceased in his assault upon defendant at the time the fatal shot was fired. State v. Partlow, 90 Mo. 608. (2) Defendant did not try to avoid arrest and trial. State v. Fairlamb, 121 Mo. 137; State v. Hopper, 142 Mo. 478. (3) Instruction 14 is erroneous. It may state a correct legal proposition, but under the facts in this case, it was a comment upon the evidence and was calculated to confuse and mislead the jury. State v. Partlow, 90 Mo. 608; State v. Rapp, 142 Mo. 443; State v Hopper, 142 Mo. 478; State v. Tabor, 95 Mo 585. (4) Having called the jury's attention to defendant's duty to withdraw from the difficulty, it was error to refuse instructions 1 and 2, then asked by defendant. (5) It was error to permit the prosecuting attorney to say to the jury that "this man Moran has been mixed up with more than one escapade with this man Adler." The prosecutor had no right to state as a fact what he would not have been permitted to prove even if true.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Instruction 10 herein is not, by considerable, the same instruction as 11, in State v. Partlow, 90 Mo. 608. The error therein condemned is carefully guarded against and avoided. The words "but they must also believe from the evidence that the defendant neither sought, invited, provoked nor commenced, by any willful act of his own, said difficulty," are not embodied in letter or meaning in instruction 10 criticised, nor in any instruction in the case. On the other hand, the court satisfied the decisions of this court on the question of self-defense by one who voluntarily enters into a difficulty by giving instruction 14. The plea of provocation will not avail in any case where it appears that the provocation was sought for and induced by the act of the party in order to afford a pretense for wreaking his malice. State v. Partlow, 90 Mo. 608; Wharton on Hom. 197; Wharton's Crim. Law, secs. 474-476; 2 Bish. Crim. Law, sec. 715. If the person assailed may safely avoid the danger without resorting to the use of a deadly weapon, he should do so. State v. Brooks, 99 Mo. 137. In this case the defendant having withdrawn, all danger to him was past, and the killing can under no consideration be excused on the ground that it was done in self-defense. Evans v. The State, 33 Ga. 4; Guice v. State, 60 Miss. 714; State v. Chavis, 80 N.C. 353; Lewis v. State, 51 Ala. 1. (2) No error was committed in giving instruction number 12 on the question of defendant's flight. State v. Potter, 108 Mo. 424; State v. MaFoo, 110 Mo. 7; State v. Williams, 54 Mo. 170; State v. Gee, 85 Mo. 647. (3) The statement made by the prosecuting attorney: "I suppose this man, Moran, has been mixed up with more than one escapade with this man Adler," was not such as tended to prejudice the jury against defendant. And while it may have been improper, yet it could in nowise prejudice defendant's case or injure him in any way.
Defendant was tried and convicted of murder in the second degree, and his punishment fixed at ten years imprisonment in the State penitentiary, for having with malice shot with a pistol and killed one William Johnson. He was indicted, tried and convicted in Jackson county where the crime was committed.
From the judgment and sentence he appeals.
Briefly stated the facts as disclosed by the record are that about 5 o'clock on the evening of May 2, 1897, defendant and deceased engaged in a quarrel near the crossing of Sixth and Broadway streets in Kansas City, Missouri, during which Adler ran Johnson across Sixth street, then west on the same street, Adler pulling off as he went along a piece of plank, from three to four feet in length, from a board fence or advertisement sign. Johnson ran into an alley and picked up some pieces of bricks which he began throwing at Adler, and with one of them struck him on some part of the body. When Adler saw Johnson picking up the pieces of brick he retreated and ran into a grocery store, being pursued by Johnson and another man who had a knife open in his hand. In the meantime a large number of persons had gathered upon the scene yelling "Hit him, head him off, catch him," etc. Adler remained in the store but a very short time, then returned to the street with a revolver in his hand. There were then present about two hundred persons, whites and blacks, the latter largely preponderating. Johnson was a negro. When Adler come out of the store some one present informed Johnson that he had a gun and was going to shoot. Johnson was then from eighty to ninety feet from Adler and began running, when Adler took after him and fired two shots at him from a pistol, the second of which entered the left back between the tenth and eleventh ribs, passing through the upper end of the left kidney, ranging slightly upwards, passing through the right lower lobe of the right lung, from the effects of which he died within five minutes.
There was some evidence tending to show that at the time of the shooting a large number of the persons present were pursuing defendant, among them the deceased, at least one of whom with an open knife in his hand and another with a pistol, when defendant turned and fired upon deceased.
Soon after the shooting occurred defendant went to Kansas City, Kansas, and when arrested that evening denied being a party to the difficulty.
He entered the plea of self-defense.
The court instructed for murder in the first and second degrees, manslaughter in the fourth degree, and self-defense.
The grounds upon which a reversal of the judgment is sought, are, the giving of erroneous instructions on behalf of the State, the refusal of legal and proper instructions asked by defendant, and the use of improper language by the prosecuting attorney in the argument of the case before the jury.
But three of the State's instructions are criticized; the tenth, eleventh, and fourteenth. They are as follows.
10. The court instructs the jury that if you find from the evidence that the defendant shot and killed William Johnson, but shall further find that at the time the defendant killed William Johnson that he believed and had reasonable cause to believe that William Johnson was about to kill him, or to do him some great bodily harm, you will acquit him. It is not necessary that the danger should have been actual and about to fall on the defendant, but it is necessary that the defendant should have believed that it was actual and about to fall on him at the time he fired the fatal shot, if he did so, and that he then had reasonable cause to believe it was actual and about to fall on him. It is no defense if he did in fact believe William Johnson was about to kill him or do him some great bodily harm, unless at the time he so fired the fatal shot, if he did so, he had reasonable cause to believe and did believe that William Johnson was at that time about to kill or do him some great bodily harm. As to whether or not the defendant had, at the time he fired the fatal shot, reasonable cause to believe, and did believe, that William Johnson was about to kill him or to do him some great bodily harm, you will decide from all the facts and circumstances before you.
11. The jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony. In determining as to the credit you will give to a witness and the weight and value you will attach to a witness' testimony, you ...
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