The State v. Edwards

• Decision Date: 14 May 1907
• Parties: THE STATE v. JAMES P. EDWARDS, Appellant
• Court: Missouri Supreme Court

102 S.W. 520

203 Mo. 528

THE STATE v. JAMES P. EDWARDS, Appellant

Supreme Court of Missouri, Second Division

May 14, 1907

Appeal from Audrain Circuit Court. -- Hon. Jas. D. Barnett, Judge.

Reversed and remanded.

P. H Cullen, Orlando Hitt and E. W. Hinton for appellant.

(1) The instruction of the court on the subject of provoking the difficulty is erroneous. There was no evidence on which to base it. State v. Walker, 196 Mo. 73; State v Packwood, 26 Mo. 340; State v. Bailey, 57 Mo 131; State v. Chambers, 87 Mo. 406; State v. Herrill, 97 Mo. 111; State v. Johnson, 111 Mo. 584; State v. Little, 67 Mo. 624; State v. Tice, 90 Mo. 112; State v. Sturgis, 48 Mo.App. 263; State v. Wilson, 39 Mo.App. 186; State v. Brady, 87 Mo. 142. (2) The instruction as to manslaughter is erroneous and misleading and without evidence to support it. Previous threats do not constitute lawful provocation within the meaning of the law. The rule is well nigh universal that facts which might show passion are not admissible when a period of time has elapsed between defendant's first knowledge of them and his action, sufficient for his passion to cool. State v. Grayor, 89 Mo. 600; State v. Herrell, 97 Mo. 105; State v. Baker, 30 La. Ann. 1134; Compton v. State, 117 Ala. 56; State v. Lawry, 4 Nev. 161. Threats, assaults, insulting epithets or charges made at the time of the difficulty are admissible on the issue of provocation but if made previous to the killing such matters are rigidly excluded on the issue of provocation. State v. Brown, 181 Mo. 192; State v. Jackson, 17 Mo. 544; State v. Wood, 124 Mo. 412; Sanchez v. People, 22 N.Y. 147. (3) The court erred in declining to instruct that proof of a wounding in the back or side was not proof of such physical fact as destroyed self-defense. (4) The court's endorsement of the State's contention that uncommunicated threats by deceased are immaterial was error. (5) The ruling permitting defendant's witnesses to be contradicted on collateral issues and opinions was erroneous.

Herbert S. Hadley, Attorney-General, N. T. Gentry, Assistant Attorney-General, and John D. Orear for the State.

(1) The instruction, given by the court, on the subject of manslaughter in the fourth degree, was a proper one. The evidence showed that a threat, made by the deceased, was communicated to the defendant an hour or two before the killing. That just prior to the shooting, the deceased jumped violently from his chair, telling the defendant that he should not live to enjoy deceased's money; and that the defendant, by this sudden action, was excited. If these facts were true, and they were given in evidence by defendant, they justified the manslaughter instruction. Even if they did not justify such an instruction, the error was one in favor of the defendant, and one for which he cannot complain. This instruction permitted the jury to convict the defendant of a lesser crime than the one he was, according to the evidence, guilty of; hence the error, if error it was, was in his favor. State v. Billings, 140 Mo. 193; State v. Todd, 194 Mo. 377; State v. McMullin, 170 Mo. 609; State v. Nelson, 88 Mo. 126; State v. Bulling, 105 Mo. 204. (2) No error was committed in allowing the State to cross-examine defendant's son on the statement that he made to the witnesses Lincoln Cleveland and Ira Mayes; nor in allowing the State to contradict that statement by proving that, immediately after hearing of the shooting, the son of defendant said, "It has happened." (3) No error was committed in refusing defendant's instruction on the subject of shooting the deceased in the back. Defendant testified that the deceased got up, ran his hand in his pocket and made a motion like he was going to assault the defendant, and started towards him. In the cross-examination of the physicians, who testified for the State, and in the introduction of Dr. Wallace's evidence, defendant was trying to convince the jury that deceased was shot in front, and shot at the time he was starting to attack the defendant. Defendant also introduced evidence tending to show that the deceased, after the shooting, fell on his back on the floor. Hence, the defendant was not entitled to an instruction the opposite of what he himself testified to, and what all of his evidence tended to prove. A party's position must be consistent; he cannot introduce evidence on one theory and then be entitled to have instructions on another. State v. Valle, 196 Mo. 29; State v. Bailey, 190 Mo. 295; State v. Lewis, 118 Mo. 83; State v. Gartrell, 171 Mo. 522.

OPINION

FOX, P. J.

This cause is here by appeal on the part of the defendant from a judgment of the circuit court of Audrain county convicting him of manslaughter in the fourth degree. On the 27th day of March, 1906, the prosecuting attorney of Audrain county filed an information, duly verified, charging the defendant with murder in the first degree. The date of the homicide charged was March 22, 1906; the name of the party charged to have been killed was John Oldham, and the weapon used was a shotgun. At the June term, 1906, of the Audrain Circuit Court the defendant was put upon his trial upon the charge contained in the information. We shall not undertake to give in detail all of the testimony introduced upon the trial; it will suffice to give the tendency of the testimony to establish certain facts involved in the prosecution.

The State's evidence tended to prove that the defendant and the deceased were engaged in the operation of a coal mine on defendant's farm near Thompson, in Audrain county. A written contract had theretofore been entered into between them, by the terms of which the deceased agreed to pay certain sums at stated times as royalty, and the deceased was to have the exclusive operation of the mine. In addition to the operation of the mine the deceased and his family were given the right to and did occupy a dwelling house and a small piece of ground belonging to the defendant near said mine. Some time prior to the 22nd of March, 1906, there were differences between them as to the amount due and as to the way the mine was being operated. Accordingly, defendant attempted to terminate the lease and instructed the deceased to vacate the mine and also the dwelling house. Deceased and his family moved out of the house over to the Northcutt place and moved some of his tools from the mine a few days prior to the date of the homicide. On the morning of the homicide the deceased went to the mine for the purpose of getting some tools and a telephone box, and also for the purpose of moving some of his boxes out of a little stable in order that the defendant might put some hay in the stable. Mr. Oldham, the deceased, claimed that the defendant was still owing him for certain work that he had done on the dwelling and barn and mine and also for an expensive piece of machinery that he purchased and placed in the mine. A short time before noon Mr. Oldham left the mine going in the direction of the defendant's house, the defendant having gone to the house about one hour before. There was no witness present at the time of the shooting with the exception of the defendant himself. As to what happened at the time of the shooting the State introduced in evidence a short statement signed by the defendant, made by him before the coroner, the substance of which was that the deceased came into the defendant's bedroom, commenced talking to the defendant in a threatening and angry manner, thrust his hand into his overcoat pocket as though in the act of drawing some weapon, and that the defendant shot twice, using a double-barreled shot gun. The coroner, Dr. P. E. Coil, who resided at Mexico, Missouri, learned of the shooting and went at once in company with the prosecuting attorney and the sheriff to the home of the defendant, reaching there late in the afternoon of that day. The coroner testified that he found the body of deceased in the bedroom of the defendant; that deceased was lying on his back with his head close to a stove, his feet being about the center of the room. Near his head was the foot-rest on the stove, which was broken, the break appearing to be recent. In respect to the nature and character of the wounds inflicted upon the deceased, the testimony as introduced by the State also tended to show that there were two wounds, one on the right side of the back and the other on the left side of the back, the wounds ranging up, the loads scattering and some of the bullets going out in front. It was claimed that one of the bullets was deflected and some were still found in the body of the deceased. The deceased had on an overcoat, undercoat, shirt, undershirt, pants and overalls. The testimony tended to show that after the killing he had no weapon whatever in any of his pockets, but a small pocket knife which was found in his pants pocket under his overalls. In his right hand overcoat pocket was found a telephone receiver.

The testimony of the sheriff was substantially that he examined the room in which the deceased's body was found but that he could find no bullets and that while the deceased's clothing was very bloody he found no blood on the carpet. There was another witness who testified substantially that the deceased, before leaving the mine, got his wood rasp, which he placed in his outside overcoat pocket. This rasp was about an inch and a half wide and about eighteen inches long, and it was found by witness Ridgeway about the premises of the defendant after the snow melted, some three or four days after the killing. It was found about five or six feet east of the porch, which was the porch opening into the bedroom where the body of the deceased was afterwards found.

On behalf of the defendant the evidence tended to show that he...