The State v. Finkelstein
| Decision Date | 29 January 1917 |
| Parties | THE STATE v. HENRY FINKELSTEIN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Reversed and remanded.
T. J Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
(1) The trial court erred in refusing to instruct the jury on all the questions of law arising in the case and necessary for their information in reaching a correct verdict. Sec. 5231, R. S 1909. (2) The court erred in refusing to instruct the jurors on the law of self-defense, although requested so to do by the defendant. (3) The court erred in giving instruction number 7, telling the jury that the defendant and his wife were competent witnesses and their testimony should be weighed by the same rules that governed the testimony of other witnesses, with the exception that in passing upon it they should take into consideration the fact that the defendant was the defendant in the case and that witness Helen Finkelstein was his wife, and the interest they had in the result. State v. Mintz, 245 Mo. 542; State v. Evans, 183 S.W. 1066; State v. Shaffer, 253 Mo. 338.
Frank W. McAllister, Attorney-General, S. P. Howell, Assistant Attorney-General, and Lewis H. Cook for the State.
(1) The court did not commit error in refusing the instruction on self-defense for the reason that both the evidence of the State and the defendant's testimony showed that such a theory was contradicted by the physical facts. State v. Nelson, 118 Mo. 127; State v. Pollard, 139 Mo. 228; State v. Hamilton, 170 Mo. 382; State v. Fraga, 199 Mo. 136; State v. Vaughan, 200 Mo. 22; State v. King, 203 Mo. 570; State v. Arnold, 206 Mo. 600; State v. Tucker, 232 Mo. 18; State v. Hearney, 177 S.W. 307. (2) Under the condition of the record in this case any insufficiency in instruction number 7 is not available as a ground for reversal. State v. Gifford, 186 S.W. 1060; State v. McBrien, 265 Mo. 605; State v. King, 194 Mo. 481; State v. Douglas, 258 Mo. 296; State v. Kapp, 187 S.W. 1180; State v. Gilbert, 186 S.W. 1003. (3) If, however, the court should hold that instruction number 7 is properly saved for review, then we submit that the giving of such an instruction does not, under the facts of this case, constitute reversible error. State v. Maguire, 69 Mo. 197; State v. Shaffer, 253 Mo. 338; State v. Creeley, 254 Mo. 396; State v. Hyder, 258 Mo. 231; State v. Evans, 183 S.W. 1067.
OPINION
In Banc.
So much of the evidence as is pertinent here is: The defendant is a married man; on September 12, 1915, his wife absented herself, going to a hotel, where she took up residence with the deceased and a woman with whom he was unlawfully cohabiting, all occupying the same room. On the night of the 12th of September, 1915, the deceased brought a man by the name of Belrose to the room, evidently for the purpose of illicit relations with the defendant's wife. This she resented, and as a result of the disturbance which ensued, the deceased was required to leave the hotel. The following day the two women and the deceased removed to another place. Shortly thereafter the defendant called upon Belrose and made threats against both the deceased and Belrose. The deceased was informed of this and thereupon stated to the defendant's wife that he and Belrose were going to kill the defendant. On the same night, the defendant and the deceased met, and the deceased made two unsuccessful attempts to discharge his pistol at and against the defendant. On that night and at about one o'clock thereafter, the deceased told the defendant's wife that had his pistol discharged as he had intended, the defendant would then be dead. This information was communicated by the wife to the defendant. On the following day the defendant and the deceased met at 22nd and Olive Street, the deceased inquiring whether the defendant really desired to ascertain the whereabouts of his wife. Upon receiving an affirmative reply, the defendant and the deceased walked a short distance, when the shooting took place. The State's evidence discloses that the defendant shot twice while the deceased was running from him, both of which struck the deceased in the back, and either of which was fatal. The defendant's evidence tended to show that immediately prior to the shooting, the deceased, after indulging in certain profanity, pulled from his pocket a pistol, which was instantly seized by the defendant, and that the same was thereupon twice discharged.
I. If the judgment in this case cannot be upheld it is because the court did not submit to the jury the alleged issue of self-defense, or because it gave a cautionary instruction as to the testimony of the defendant and his wife.
As to the first assignment, we start with the major premise that where there is substantial evidence of self-defense in a case, the defendant is entitled to an instruction upon that theory, even though such evidence comes wholly from the accused himself. [State v. Weinhardt, 253 Mo. 629, 161 S.W. 1151; State v. Bidstrup, 237 Mo. 273, 140 S.W. 904; State v. Richardson, 194 Mo. 326, 92 S.W. 649; State v. Arnett, 258 Mo. 253, 260, 167 S.W. 526.]
There is in this case, for the purpose of this point, ample evidence that the deceased had not only previously threatened, but had, a few days prior to the homicide, actually attempted to take the life of the defendant, his effort being unsuccessful merely because of the failure of his pistol to work as intended.
For some days the defendant's young wife, having deserted her husband, had been living in rather questionable quarters with the deceased and his companion, and the deceased had importuned her to yield to illicit relations with at least one of his friends. The defendant, while seeking his wife's whereabouts, came in contact with the deceased, who, after a short conversation, in which he reminded the defendant that he had intended killing him on a former occasion, drew a pistol, which the defendant instantly seized, whereupon the same was twice discharged. Had the testimony of the defendant here ended, there could be substantially no doubt as to the propriety and necessity of an instruction on self-defense, since we would have a case of former threats, an immediately prior deadly assault, a wicked motive and a demonstration of violence clearly presenting the appearance of impending danger. With these facts in evidence does the bare, bald statement of the defendant that the shooting was accidental, malicious, or in self-defense, become binding for the purpose of determining the law? Had the defendant followed his statement of facts with the conclusion that he acted in self-defense the State's argument against an instruction on this phase would be without basis, it being conceded that under such circumstances the instruction should have been given. Instead of this, he stated that the shots were accidentally fired, and it is upon this that the State relies in justifying the trial court's refusal to give the instruction.
This argument, when reduced to its last analysis merely means, that after the facts have been detailed, the conclusion of the defendant thereon determines the law of the case. This is not the law of the land. There was other and ample evidence contradicting the defendant's statement and tending to show that the shooting was not accidental, and unless this were true the verdict of guilty would have to be interfered with on other grounds. The defendant testified that at the time of the shooting he was thoroughly excited, and under the circumstances, a normal man would be. The jury might reasonably reject his statement that the shooting was accidental, believing the other evidence on this phase, and yet believe the remainder of his and his wife's testimony which tended to show that he was justified in acting in self-defense. With the facts before it, the jury was no more bound by the defendant's statement that the shooting was accidental than it would have been had he bluntly stated that it was in self-defense. Of course if the State's evidence as to all the facts and that the deceased was shot in the back is believed, there is no room for self-defense in the case, but, regardless of this, the defendant had the right to have the theory of his defense properly presented and definitely determined by the fact-tryers. It is our opinion that an instruction on self-defense should have been given and that the failure of the court to submit this issue, requires a reversal of the judgment.
II. As with Banquo's ghost, the question of the propriety of the cautionary instruction on the testimony of the defendant and his wife, will not down. My views on this subject are fully expressed in State v. Evans, 183 S.W. 1059, and to these I still adhere. While the instant case is one which to my mind comes near the danger line, it is unnecessary to determine the question in view of the error heretofore pointed out and because of which the judgment is reversed and the cause remanded.
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