The State v. Beckham

• Decision Date: 31 December 1924
• Docket Number: 25677
• Citation: 267 S.W. 817,306 Mo. 566
• Parties: THE STATE v. R. F. BECKHAM, Appellant
• Court: Missouri Supreme Court

267 S.W. 817

306 Mo. 566

THE STATE v. R. F. BECKHAM, Appellant

No. 25677

Supreme Court of Missouri

December 31, 1924

Appeal from Jasper Circuit Court; Hon. S.W. Bates, Judge.

Affirmed.

George V. Farris, Kelsey Norman and Frank H. Lee for appellant.

(1) Under the provisions of Section 3235, Revised Statutes 1919 the court should have instructed the jury to acquit defendant, for the reason that at common law the killing of deceased under the circumstances was justifiable or excusable. R. S. 1919, sec. 3235; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159; State v. Marfaudille, 48 Wash. 117, 15 Ann. Cas. 584; 1 Thompson on Negligence, sec 967; Wharton, Homicide (3 Ed.) p. 789; Kelley Cr. Law & Proc. (3 Ed.) sec. 515; R. S. 1919, sec. 3236. (2) Instruction 3 given by the court over the objection and exception of the defendant did not correctly define culpable negligence when applied to the facts in the case, and required the jury to convict if the defendant carelessly and negligently set the spring gun, and leaves out entirely the issue whether the gun was accidentally discharged. State v. Horner, 266 Mo. 109; State v. Irvine, 52 So. 567. Instruction numbered 4 is clearly erroneous under all the decisions of this court, in not properly declaring the law, invading the province of the jury, assuming disputed facts, and being in effect a direct command to convict the defendant. State v. McNamara, 212 Mo. 150; State v. Sauerbarger, 64 Mo.App. 129; People v. Conboy, 113 P. 703; Bauer v. State, 107 P. 525. (3) The demurrer to the indictment should have been sustained as the same was insufficient in law to charge any offense. State v. Lockwood 119 Mo. 463.

Jesse W. Barrett, Attorney-General, Geo. W. Crowder, Assistant Attorney-General, for respondent.

(1) The information in this case is inartificially drawn, but it contains all the necessary elements to apprise appellant of the nature and character of the charge against him and to which he was called upon to answer. This is all that is required of an information. Sec. 3236, R. S. 1919; State v. Watson, 216 Mo. 420. (2) The court properly refused appellant's request for a per emptory instruction to acquit. The question of guilt or innocence was one for the jury under both the law and the evidence. 13 R. C. L., p. 853, sec. 155; State v. Green, 19 A. L. R. 1431, 110 S. E. (S. C.) 145; Pierce v. Commonwealth, 28 A. L. R. 864; State v. Barr, 29 L. R. A. 154, 48 Am. St. 890; State v. Marfaudille, 14 L. R. A. (N. S.) 346, 15 Ann. Cas. 584; Simpson v. State, 31 Am. Rep. 1; United States v. Gilliam, 25 Fed. Cas. 1319. The right of one to protect his property against intruders, even a burglar (and for this purpose to use force as may be used against him) cannot be construed, under the best and most enlightened authority, to mean that a man may construct an instrument of death, like a loaded and cocked spring gun, merely for the purpose of guarding, generally, his property, in an isolated building or place apart from his habitation. (3) Looking at this case from appellant's theory, according to his testimony, that he had not intended to take life, but only sought to frighten intruders, and for this purpose rigged up his gun within his chilli shack so as not to point it directly toward the window, and that it would not have shot through the window had it not slipped from its original position, the question is still one for the jury as to whether appellant was guilty of culpable negligence, first in erecting a spring gun for that purpose, or second, in the manner of its erection. (4) Instruction 3 correctly defines culpable negligence. State v. Weisman, 256 S.W. 740; State v. Horner, 266 Mo. 109; State v. Emory, 78 Mo. 77. (5) Instruction 4, read in connection with the instruction defining culpable negligence, was a correct declaration of the law under the facts in this case. It could not be distorted into a command to convict appellant. (a) Taken on the theory, which is supported by modern authority, that appellant had no right to set a loaded spring gun for the protection of his property, described by the evidence, even though the gun was securely set, the instruction is correct; and, taken on appellant's theory, under his own evidence, that he propped the gun, or tried to, in such a manner that it would not shoot through the window, and that it slipped from the position in which he had placed it, and did shoot through the window with fatal results, the instruction is correct in that it submits to the jury the question of appellant's culpable negligence. Cases supra.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On September 12, 1923, the Prosecuting Attorney of Jasper County, Missouri, filed in the circuit court of said county, a verified information, which, omitting caption, signature and verification, reads as follows:

"Roy Coyne, Prosecuting Attorney within and for the County of Jasper, in the State of Missouri, upon his oath, informs the court and charges that on or about day of May, 1923, in the County of Jasper and State of Missouri, R. F. Beckham with force and arms in and upon one Windsor, feloniously, carelessly, recklessly and with culpable negligence did then and there make an assault, and the said R. F. Beckham was then and there in charge of and in control of a chilli stand located on the northeast corner of Fourth and Grand Avenue in the city of Joplin, Missouri, and did operate and control said chilli stand and did hold dominion over and control all fixtures and appurtances attached to the chilli stand therein located, and that the said R. H. Beckham did feloniously, carelessly, recklessly, and with culpable negligence construct and contrive and maintain a spring trap-gun so attached to a north window in the said chilli stand, said gun being so loaded with shot and shell and powder as to and did, when exploded, hit the said Windsor in the head, and then and there feloniously, carelessly, recklessly and with culpable negligence the said blows, shock and concussion as exploded by said spring trap-gun, did kill the said Windsor, and that the spring trap-gun so maintained as aforesaid in the manner and form and by means aforesaid then and there feloniously, carelessly and with culpable negligence did kill and slay, and against the peace and dignity of the State."

Defendant was formally arraigned and entered a plea of not guilty. He demurred to the information, and his demurrer was overruled on October 10, 1923. He was tried before a jury and the latter, on the date last aforesaid, returned the following verdict:

"We, the jury, find the defendant guilty of manslaughter and assess his punishment at six months in the county jail."

Motions for a new trial and in arrest of judgment were filed, overruled, judgment entered, and an appeal granted defendant to this court.

The act of culpability, as alleged in the information, was that appellant feloniously and recklessly, without regard to the lives or safety of others, placed a loaded shot-gun in such a position and manner, on the inside of his chilli stand in Joplin, as to cause said gun to be fired or discharged by the movement or opening of a window in the north part of said building. The chilli stand was described as a small house or "shack," about ten feet wide by sixteen feet long, located at or near Fourth and Grand Streets, in Joplin, Jasper County, Missouri. This constituted appellant's place of business, where he sold chilli and other prepared foods and drinks. In the back, or north end of this building, was a glass window consisting, presumably, of one sash. This window was fastened at the top by hinges, and was hung, so that it would open outward from the bottom. A number of thefts had been committed in this place, according to appellant's testimony, which, although not reported to the officers of the law, induced appellant to set the trap-gun inside the shack for the purpose, as he said, of "guarding" the place.

The facts, as stated by counsel for respondent, are substantially correct, and we adopt the same as part of our statement, to-wit:

It is to be gathered from the evidence that the gun was placed in a position on a counter inside the building so the muzzle would point toward the window. The gun was propped with rocks so as to prevent the trigger from being tripped until the window was opened, and there it remained in shooting position, with the muzzle close to the window pane. There was a string tied to the trigger, or to a stick which was connected with the trigger, and the other end of the string tied to the lower end of the window sash. This arrangement was so made that if the window was opened or moved outward from the bottom such movement would trip the trigger, causing the gun to be fired. In this position it stood cocked. The only variation in the testimony was, that appellant claimed at the trial that he did not intend to point the gun directly toward the window, but had it in such a position that the muzzle was pointed upwards, slightly to the right, and that it must have slipped from the position in which he had placed it, thereby causing it to be discharged through the window at the time it was fired. Appellant himself testified that the gun was fired by means of the arrangement he had made and that the load did pass through the window pane. He had been in the habit of guarding his chilli stand with this trap gun for several weeks prior to the fatality resulting from the contraption, for which he was tried.

On the morning of May 10, 1923, a youth about seventeen years old named Audrey Windsor, was found dead just on the outside and at the rear of appellant's chilli shack. It was found on examination that a load of shot had struck this youth full in the face; that a hole, made by the...