The State v. Creed
| Decision Date | 11 June 1923 |
| Citation | 252 S.W. 678,299 Mo. 307 |
| Parties | THE STATE v. THOMAS CREED and ROBERT CREED, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. Robert W. Hall, Judge.
Reversed and remanded.
Harvey & Baer for appellants.
(1) It was error to permit the prosecution, upon re-examination of the witness Edna Brooks, to introduce in evidence her statement made to the police and her evidence given on her second appearance before the grand jury. The witness had been thoroughly impeached on her cross-examination by her testimony given before the coroner and also given on her first appearance before the grand jury, and could not lawfully be rehabilitated by statement made subsequently to the impeaching statements. Flach v. Ball, 209 Mo.App. 401; Kelly v. American Cent. Ins. Co., 192 Mo.App. 20; Conrad v. Griffey, 16 How. (U.S.) 37; Ellicott v. Pearl, 35 U.S. 412; Queener v Morrow, 1 Cold. 123; Stolp v. Blair, 68 Ill 541; Legere v. State, 111 Tenn. 368; State v Caddy, 15 S.D. 167; Robb v. Hackley, 23 Wend. 50; Ewing v. Keath, 16 Utah 312; Com. v. Jenkins, 76 Mass. 485; Waller v. People, 209 Ill. 287; Chicago City Ry. Co. v. Matthieson, 212 Ill. 297; People v. Katz, 209 N.Y. 337; Matter of Hesdra, 119 N.Y. 615; Griffin v. Boston, 188 Mass. 476; Com. v. Retkavitz, 222 Mass. 249. (2) It was error to admit in evidence before the jury the bloody garments of the slain police officer, it being evidently offered solely for the purpose of inflaming the minds of the jury. State v. Porter, 276 Mo. 387; State v. Tarwater, 239 S.W. 484; State v. Allen, 234 S.W. 837. (3) Instruction numbered 8 on self-defense is erroneous and does not properly declare the law. State v. Hopkins, 278 Mo. 388; State v. Roberts, 280 Mo. 669; State v. Roberts, 242 S.W. 669. (4) The court erred in refusing to give at the request of defendants Instruction A, on the subject of imperfect self-defense, and Instruction D, to the effect that the defendants were not required by the law to nicely gauge the amount of force to be used in defending themselves. Authorities cited under Point 3. (5) Instruction numbered 7, stating to the jury that the defendants admitted the shooting and wounding, is a flagrant comment upon the evidence by the court, and was error. State v. Vaughn, 141 Mo. 514; Green v. State, 7 Ga.App. 803; People v. Warren, 259 Ill. 213; Cannon v. People, 141 Ill. 270; People v. Lee Chuck, 74 Cal. 30. (6) The defendants' Instruction F, on threats by the deceased, should have been given.
Jesse W. Barrett, Attorney-General, and Henry Davis, Assistant Attorney-General, for respondent.
(1) When a witness has been impeached by proof of a prior statement inconsistent with the evidence given by the witness at the trial, a prior consistent statement is admissible to show that the evidence given at the trial was not a recent fabrication. State v. Taylor, 134 Mo. 109, 155. A prior consistent statement is also admissible under such circumstances, though no proof was introduced tending to show an inconsistent statement, where the questions or statements of counsel cast a cloud upon a witness through the imputation of a corrupt motive for giving his evidence. Kelly v. American Central Ins. Co., 192 Mo.App. 24; Costello v. Kansas City, 280 Mo. 576, 590. (2) The exhibition of the clothing worn by deceased at the time of the killing was proper for the purpose of showing to the jury the attitudes and relative positions of the deceased and the one who fired the shot. State v. Wieners, 66 Mo. 29; State v. Buchler, 103 Mo. 208; State v. Long, 209 Mo. 382; State v. Tarwater, 293 S.W. 484. (3) Where there is strong uncontradicted evidence that defendants did the killing, and at the trial some evidence is given tending to establish the theory of self-defense, and a number of instructions are requested by them on the law of self-defense, it is not reversible error for the court in giving an instruction on self-defense to assume that the defendants did the killing. State v. Bobbst, 269 Mo. 214, 224; State v. Moore, 101 Mo. 316, 329; State v. Vickers, 209 Mo. 12, 33; State v. Priest, 215 Mo. 1, 9; State v. Mills, 272 Mo. 526, 534. (4) An instruction on a trial for homicide which declares that the right of self-defense does not imply the right of attack, nor will it avail where the difficulty is sought for or induced by the party's own willful act, or where he voluntarily enters into it with the intention of killing or of doing some great bodily harm, is not erroneous when considered in connection with another instruction to the effect that the defendant was justified in killing decedent if defendant from the circumstance had a reasonable cause to apprehend a design on the part of the decedent to kill him or to do some great personal injury and that he had reasonable cause to apprehend immediate danger of such design being accomplished. State v. Johnson, 76 Mo. 126; State v. Huffman, 220 S.W. 851; State v. Caldwell, 231 S.W. 613; State v. Roberts, 242 S.W. 672; State v. Canton, 222 S.W. 449. (5) That part of an instruction which tells a jury that "no one is justified in using any more force than is necessary to get rid of an assailant or to repel an assault made upon him, unless at the time there be good cause to apprehend death or great bodily injury from such assault," is not objectionable as requiring the assaulted person to nicely gauge the amount of force to be used in resisting the assault. Its effect is just the opposite. State v. Roberts, 280 Mo. 669, 681. (6) Where the facts show that bad feeling and enmity existed between defendant and the man he killed some time prior to the day the killing occurred, that the defendant armed himself with a loaded pistol and he and his brother went to the deceased without solicitation or invitation from him, provoked a difficulty with him and shot him, and there is no evidence whatever that their purpose in provoking the difficulty was to commit any other act than the killing, an instruction on the imperfect right of self-defense is not authorized. State v. Roberts, 280 Mo. 669, 681; State v. Kelleher, 201 Mo. 614; State v. Jenkins, 178 S.W. 93. (7) An instruction on the subject of self-defense to the effect that a person attacked is not required to nicely gauge the proper quantum or amount of force to be used is properly refused where the court has already instructed the jury that the defendants had the right to use such force as was apparently necessary to resist the assault, and that more force than was necessary could lawfully be used if there was good cause to apprehend death or great bodily injury from the assault.
DAVIS, C. Railey and Higbee, CC., concur. Walker, J., concurs; David E. Blair, P. J., and White, J., concur in paragraphs 1, 2, 3, 4 and 5, and the result.
Robert Creed and Thomas Creed were convicted, after a three days' trial, on the 23d day of April, 1921, of murder in the first degree, and their punishment fixed at imprisonment in the penitentiary for their natural lives, for that, on the 31st day of October, 1920, they shot and killed George Geisler, a police officer of the city of St. Louis.
The evidence on behalf of the prosecution was to the effect that the two defendants, Thomas Creed and Robert Creed, in company with a lewd woman named Edna Brooks, on the afternoon, about five o'clock, of the aforesaid day, entered a saloon or "soft-drink parlor" of one William F. English, at the southwest corner of Clark Avenue and Twenty-first Street in the city of St. Louis; that soon thereafter while the two defendants and the said Edna Brooks were standing at the bar and all of them drinking whisky, Police Officer Geisler entered and spoke to the defendants and others as he passed to the rear of the room; that upon his returning to the saloon a short while thereafter an altercation occurred between defendant Robert Creed and Officer Geisler, during which Creed referred to Geisler's brother as being a thief and used offensive epithets to the officer (testimony of Wm. F. English). Defendants then went to him, taking positions on either side of deceased. During said altercation the officer struck Robert Creed with his club (testimony of Edna Brooks). Thereupon there was a struggle between the officer and the Creeds and the three of them retreated through the opening at the end of the bar into a large back room connected with the saloon, the deceased being shoved and pushed through by defendants, and shortly thereafter shots were fired in said room, whereupon all the numerous persons in the saloon proper fled to the street through the front door, including Edna Brooks, according to her testimony given before the coroner the morning after the homicide and before the grand jury the same day, as admitted by her on cross-examination. On this trial, however, she stated that she closely followed the defendants and the officer into the aforesaid back room and there tried to prevent any shooting, the officer having his hands up and the defendants being on either side of him, and that shots were fired so close to her as to powder-burn her; that just after the shooting she ran out into the saloon and was hanging upon the railing of the bar, and while there saw the officer run out through the bar-room, and shortly thereafter the defendants, and said that she saw a gun in the hand of one of them as they passed, and then she went out on the sidewalk, and saw the officer fall in the street. She thought that the defendants and the officer were talking in a friendly manner, and did not hear any epithets or abusive language by the defendants until just after the officer struck Robert Creed across the face with his club.
There were a number of people in the saloon playing cards and...
To continue reading
Request your trial