The State v. Bidstrup
| Citation | 140 S.W. 904,237 Mo. 273 |
| Parties | THE STATE v. BRUCE BIDSTRUP, Appellant |
| Decision Date | 14 November 1911 |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon. Wm. H. Martin, Judge.
Reversed and remanded.
C. D Corum and W. M. Williams for appellant.
(1) The court erred in excluding the diagram or plat offered in evidence by defendant. Ency. Evidence, 638; Battishill v Humphrey, 31 N.W. 894; Western Gas Con. Co. v Danner, 97 F. 886; Brown v. Galesburg P. B. & T. Co., 24 N.E. 523; LeBeau v. Telephone Co., 67 N.W. 339. (2) The court erred in refusing to submit to the jury the question of self-defense, based upon the testimony of the prosecuting witness, as asked by defendant. (a) Defendant was entitled to instructions submitting any issue presented by any of the testimony in the case. It was the duty of the court to give instructions covering the law applicable to all the facts in evidence. (b) The testimony of the prosecuting witness authorized an instruction upon self-defense. According to his statement, he saw defendant in his yard, but defendant had done no unlawful or wrongful act. If he had entertained an intention to do any such thing, it was abandoned and he was endeavoring to leave the premises when he was pursued by the prosecuting witness, who ran after him in the dark across a twenty-acre tract of land, endeavoring to catch him. The prosecuting witness was advancing upon the defendant at the time he claims both shots were fired. He was told before the second shot not to come closer or defendant would shoot. Notwithstanding, he still advanced upon the defendant. Defendant had reasonable cause to believe from the prosecutor's actions that he intended to inflict great bodily harm upon him. There was certainly evidence to take that issue to the jury. State v. Eaton, 75 Mo. 592; State v. Adler, 146 Mo. 18; Allison v. United States, 160 U.S. 203; Roach v. State, 17 S.W. 464. (c) The instruction asked by the defendant and refused by the court sufficiently presented a request for instructions on self-defense. If the instruction presented for any reason was objectionable, it was the duty of the court to give a proper one upon that subject. State v. Adler, 146 Mo. 18; State v. Clark, 147 Mo. 20; State v. Davis, 141 Mo. 522; State v. Fox, 148 Mo. 517. (3) The verdict is against the evidence and is not supported by the testimony on the part of the State.
Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
The five instructions, when read together, are exceedingly full and fair in covering appellant's right to defend his dwelling-house and inmates, by the use of the gun. State v. Taylor, 143 Mo. 150; State v. Reed, 154 Mo. 162; State v. Pollard, 139 Mo. 220; Morgan v. Durfee, 69 Mo. 469; State v. Raper, 141 Mo. 326; State v. Kennade, 121 Mo. 405; State v. Matthews, 148 Mo. 185; Norris v. Whyte, 158 Mo. 20; 3 Cyc. 1045. (2) The only point not covered in said given instructions was that of self-defense, and for the evident reason that there was no such issue in the case. Appellant denied being on the prosecuting witness's premises, and also denied assaulting him there, and testified only to shooting him in the defense of his home and inmates on his own premises. It is true that he testified further that when he grappled with the prosecuting witness on his own premises, after firing both loads of his shotgun, and after he was cut in the struggle on the ground, he used his own knife and cut the prosecuting witness, "had to do it or die," but he was not charged with an assault with a knife, but only with a shotgun; the court did not instruct upon an assault with a knife and so the assault with the knife was not in issue and the court should not have so instructed. Moreover, it was in appellant's favor that the court did not instruct on the assault with the knife, and not having so instructed, no instruction on self-defense should have been given, as all of such evidnce on self-defense was confined to the assault with the knife. Sec. 5115, R. S. 1909. An instruction on self-defense would have been an instruction to the jury to have considered a matter entirely foreign to the real issue before them. State v. Smith, 214 Mo. 255; 12 Cyc. 652. If appellant had established perfect self-defense in his use of the knife, still, it would not have affected in the least the question of his guilt or innocence of his prior assault with the shot gun. So it was not a question of law or fact arising in the case that was necessary for their information in giving their verdict. Sec. 5231, R. S. 1909. It was not a misdirection of the jury in a material matter of law. Sec. 5284, R. S. 1909. The court's given instructions all limited the right of the jury to find appellant guilty only of the assault with the shot gun. If they failed to believe that he made the assault with the shot gun, they would have to acquit, so the assault with the knife was not in issue. If appellant had been charged with an assault with a deadly weapon not mentioned, then the case might have been different. The instructions should never enlarge upon the allegations in the information. State v. Kyle, 177 Mo. 659; State v. Scullin, 185 Mo. 709; State v. Moore, 178 Mo. 348; State v. Mulhall, 199 Mo. 202. Appellant must be guilty of the very crime charged. It should be borne in mind that this is not a charge of assault with intent to kill. which requires a specific intent; but only a felonious assault requiring but a general felonious intent and in the commission of such unlawful assault the prosecuting witness was maimed and wounded. The wound is the gravamen of the latter offense. The State did not have to charge or prove each and every wound, maiming or disfiguring. One was sufficient to sustain the conviction, notwithstanding they were all inflicted during the one continuous assault. General felonious intent is sufficient -- it is no excuse that he committed another crime.
At the may term, 1910, of the circuit court of Cooper county, appellant was convicted of maiming and wounding one Elmer Brubaker, by shooting him with a shotgun. The punishment assessed was a fine of one thousand dollars and imprisonment in the county jail for one year. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed to this court.
The testimony adduced at the trial showed the following facts, concerning which there was no material dispute:
Brubaker and the defendant both lived on what is known as the Warsaw and Boonville road, in Cooper county. This road runs along the west side and the north end of a twenty-acre tract of land owned by Brubaker. This tract is eighty rods long and forty rods wide. Brubaker lived near the southwest corner of the tract and the defendant near the northeast corner thereof. The residence of W. H. Varner is located near the northwest corner of the tract, on the north side of the road running east toward the defendant's home.
Shortly after seven o'clock p. m. on November 13, 1909, W. H. Varner, his son-in-law and another young man were at the Varner home. They heard two reports of a gun and very soon thereafter heard some person call Mr. Varner. The person calling seemed to be in distress. The night was very dark and the three men procured a lantern and went in search of the person who had called Mr. Varner. At a point in the road, about midway between Varner's front gate and the home of the defendant, they found Brubaker lying in the road. He was lying with his body across a shotgun that was shown to belong to the defendant and was in great distress and was bleeding profusely from his injuries. He had been cut in the cheek with a sharp instrument, and shot in the legs, below the knees, with a shotgun. He was carried to the Varner home and there cared for during the night. As a result of the wounds in his right leg, which became gangrenous, his leg was amputated on the following day.
There was no eyewitness to the shooting. Except as to the fact that Brubaker's injuries were inflicted by the defendant, the testimony of Brubaker contradicts the testimony of the defendant as to almost every fact and circumstance leading up to and connected with the encounter between the two.
Brubaker's account of the affair was as follows:
About seven o'clock p. m., on the day in question, he was at his own home and went to the barn to turn his horses out for the night. As he returned from the barn he saw a man pass between him and his kitchen window. He walked around to the north side of the house to see if the man was going to his front door. He did not find the man at the front door, but heard him climbing over the fence into the orchard, which was immediately north of his house. He followed into the orchard and called out, "Hello." He received no response but heard the man running in a northerly direction and ran after him. After they had run north for some distance the man changed his course to a northeasterly direction. Brubaker then changed his course to the northeast and kept somewhat to the east of the man he was pursuing. When the two reached a point near the north end of the twenty acre tract, and near the point where Brubaker was found lying in the road, Brubaker could not see or hear the other man and turned and started in a southwesterly direction toward the point where he had last heard him. Just as he started in that direction a shot was fired. It seemed to him that something had exploded almost under his feet, but he did not then realize that he had been shot. Just after the shot was fired he heard the defendant say, "Go back, Elmer, or I will shoot you again." He took about two steps in the direction...
To continue reading
Request your trial