The State v. Eastham
| Decision Date | 27 February 1912 |
| Citation | 144 S.W. 492,240 Mo. 241 |
| Parties | THE STATE v. WILLIAM EASTHAM, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ripley Circuit Court. -- Hon. J. C. Sheppard, Judge.
Reversed and remanded.
J. L Short, John H. Rainey and Ernest A. Green for appellant.
(1) The court erred in refusing to permit the witness introduced by the defense, McAutrey, who served on the jury in the case of State v. George Eastham, involving the same state of facts as the one at bar, to testify as to what was, and to narrate the testimony of the witness Nellie McKinney, given in the trial of the case of State v. George Eastham -- said witness Nellie McKinney being dead at the time of the trial of the cause at bar. Carp v. Insurance Co., 203 Mo. 340; State v. Able, 65 Mo. 357. (2) The court erred in permitting the witness introduced by the State, James K. Langford, over the objection and exception of the defendant, to testify by way of impeachment, as to what was the testimony of Josie Barnett, a witness for the defendant, in the preliminary examination in the case of State v. George Eastham; said testimony being secondary and not the best evidence. R. S 1909, sec. 5033; Bradley v. City, 90 Mo.App. 424; Estes v. Railroad, 111 Mo.App. 3. (3) The court erred in giving to the jury, of its own motion, instruction 5. Said instruction does not correctly declare the law applicable to the defense of defendant's brother, under the testimony in this cause. State v. Harper, 149 Mo. 524; State v. Darling, 202 Mo. 150; State v Gilmore, 95 Mo. 560; State v. Partlow, 90 Mo. 608; State v. Little, 228 Mo. 305; State v. Webb, 216 Mo. 388; State v. Stultz, 97 Mo. 26; State v. Heath, 221 Mo. 589; State v. Gordon, 191 Mo. 124. (4) The court erred in giving to the jury, of its own motion and over the objection and exception of defendant, instructions 6 and 7, relative to the law of defense of one's brother; said instructions do not correctly declare the law as applicable to the facts of this case. State v. Harper, 149 Mo. 524; State v. Darling, 202 Mo. 150; State v. Gilmore, 95 Mo. 560; State v. Partlow, 90 Mo. 608; State v. Little, 228 Mo. 305; State v. Webb, 216 Mo. 388; State v. Stultz, 97 Mo. 26; State v. Heath, 221 Mo. 589; State v. Gordon, 191 Mo. 124.
Elliott W. Major, Attorney-General, and John M. Dawson and Campbell Cummings, Assistant Attorneys-General, for the State.
(1) The offer was to show what the deceased witness Nellie McKinney testified to in the George Eastham case. Appellant did not offer the evidence she gave; in other words, his offer was a narration on the substance of her evidence in the George Eastham case, be it competent or incompetent in this case. In order to have this exception avail him in this court, he should have offered the evidence, thereby informing the court that the evidence offered was material to the issue. For aught this court knows, the evidence of Nellie McKinney in the George Eastham case would have been wholly improper and immaterial to the facts in this case. Furthermore, there were several eye-witnesses, both for the State and appellant, who testified in detail to all the facts and circumstances surrounding the killing; therefore, whatever Nellie McKinney's testimony might have been in the George Eastham case, she could not have seen more or less that occurred at the killing than some or all of the other witnesses, and the rejection of the evidence was not reversible error. Moreover, if appellant desired to produce before the jury the evidence of Nellie McKinney, he should have produced the shorthand notes of the court stenographer. Bradley v. Spikardsville, 90 Mo.App. 424; Estes v. Railroad, 111 Mo.App. 4. Witnesses can be impeached by showing they made contradictory statements in the former trial. Hamberger v. Rinkel, 164 Mo. 398; Underhill on Crim. Ev., sec. 238. (2) The appellant complains of instruction 5, in that said instruction does not correctly declare the law applicable to the defense of appellant's brother under the testimony in this cause. Appellant, to sustain this point, cites numerous authorities; however, it will only be necessary to notice the Partlow case, as the other authorities are founded upon the doctrine announced in that case. That case made the distinction between the right of perfect and the right of imperfect self-defense. This distinction has been kept in view by this court. How far and to what extent a defendant will be excused, or is excusable in law, must depend upon the nature and character of the act he was committing, and which produced the necessity that he should defend himself. If, however, the defendant was in the wrong, he himself was violating the law, or in the act of violating the law, and, on account of his own wrong, was placed in a situation where it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong, then the law justly limits his right of self-defense and regulates it according to the magnitude of his own wrong. This instruction announces the doctrine of this court in State v. Partlow, 90 Mo. 608; State v. Gordon, 191 Mo. 114; State v. Sebastian, 215 Mo. 58, 84. The instruction leaves it to the jury as to whether or not appellant had good reason to believe and did believe that his brother was in impending danger, and if he did believe it, then the instruction told the jury that appellant was justified in using such force as appeared to him from the surrounding circumstances to be reasonably necessary for the purpose of defending himself against such peril. The instruction does tell the jury that they must find that the danger to appellant's brother actually existed before appellant had the right to kill, but, on the other hand, it tells the jury that if they find from all the facts that appellant believed that great danger was about to befall his brother, and that peril was imminent, then and in that case, appellant had the right to defend his brother. 2 Bishop on Crim. Law (8 Ed.), sec. 701; State v. Beckner, 194 Mo. 299. Instructions 6 and 7 simply told the jury that if appellant's brother sought, provoked or brought on such difficulty, then appellant would be guilty, but that appellant would be justified in doing for his brother what the brother would be justified in doing for himself. We see no objection to these instructions. State v. Bailey, 190 Mo. 257. (3) A careful reading of the transcript of the bill of exceptions will show that the appellant did not except to the action of the court to the giving of instructions; therefore, the instructions cannot be reviewed here. An exception to an instruction should be made at the time it is given. An objection made for the first time in the motion for new trial is not timely. State v. Kretchmar, 232 Mo. 29; Harding v. Railroad, 232 Mo. 444.
At the November term, 1910, of the circuit court of Ripley county, defendant was convicted of murdering one Charles Stacey, and appeals from a judgment of that court fixing his punishment at thirty years in the penitentiary. The homicide which resulted in this conviction occurred on a public road in front of the home of defendant's father, in Ripley county, near an open spring. The evidence indicates that defendant and his brothers Willis and George were angry with deceased because of a report that deceased had accused Willis of murdering his wife.
On Sunday, June 10, 1906, deceased passed the Eastham home in company with a young lady, en route to church. About noon of the same day, as he returned from church, in company with several young people, he stopped at the Eastham spring to drink. Defendant and his brother Willis were at or near the spring. After drinking, deceased started to leave, when George Eastham, another brother of defendant, appeared at the door of the Eastham home, some twenty yards away, and hallooed to Willis Eastham to "make Stacey take back the lies he had told."
According to the testimony of eight witnesses for the State, Willis Eastham was at first disinclined to precipitate any difficulty with Stacey, but defendant and George Eastham demanded that the matter be settled then. On hearing George halloo to Willis, deceased stopped and said he did not want any trouble then, but would see defendant at 2:30 that day. Some of the State's witnesses testified that defendant drew a revolver and walked up to within a few yards of deceased and cursed him; that Willis then picked up some rocks and demanded that Stacey take back the report he had circulated. Stacey denied circulating the report about Willis killing his wife. George Eastham then ran up and began striking deceased with his fists; whereupon defendant shot deceased several times. Deceased then drew a revolver and killed Willis Eastham, and shot at George Eastham, wounding him slightly. The shots fired by defendant caused Stacey, the deceased, to fall and drop his pistol, whereupon George Eastham picked up the pistol and struck deceased over the head with it, crushing his skull. A physician testified to five gunshot wounds in the body of deceased; that any one of three of them was necessarily fatal; and also that the blows upon his head were likewise sufficient to produce death.
Defendant denied drawing his revolver until he saw a revolver in the hands of deceased; that his brothers, Willis and George, were both unarmed; and that he did not shoot until deceased had killed his brother Willis and was shooting at his brother George.
George Eastham testified that before he left his father's house he saw Stacey draw a revolver; and that he did not strike deceased, but only tried to grab the revolver out of his hand to prevent the killing...
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