The State v. Gordon

• Decision Date: 21 November 1905
• Parties: THE STATE v. FLEETWOOD GORDON, Appellant
• Court: Missouri Supreme Court

89 S.W. 1025

191 Mo. 114

THE STATE v. FLEETWOOD GORDON, Appellant

Supreme Court of Missouri, Division Two

November 21, 1905

Appeal from Boone Circuit Court. -- Hon. Alex. H. Waller, Judge.

Reversed and remanded.

O Guitar, S. Turner, J. L. Stephens, J. C. Gillespy, E. W Hinton and W. M. Williams for appellant.

(1) Manifest error was committed by the court in giving instruction 10, upon behalf of the State. This instruction is palpably erroneous, and absolutely deprived the defendant of his right of self-defense. State v. Gilmore, 95 Mo 554; State v. Rapp, 142 Mo. 448. One does not lose his right of self-defense by beginning a quarrel unless he does so for the purpose of doing his adversary great bodily harm, or effecting his death. This instruction was incorrect in two particulars: first, it deprived the defendant of the right of self-defense, if he voluntarily defended himself, even though the deceased brought on the difficulty, and was the aggressor; and, second, it deprived the defendant of the right of self-defense, if he brought on the difficulty, without any design to wreak his malice, or without any design to inflict bodily harm. This is not the law. If the defendant had no felonious intent, he was still clothed with the right of self-defense, even though he brought on the difficulty. State v. Garrett, 170 Mo. 397; State v. Higgerson, 157 Mo. 401; State v. Rapp, supra; State v. Gilmore, supra; State v. Patterson, 159 Mo. 562. (2) Even had instruction 10 been correct as an abstract proposition of law, still it would have been error to give it in this case, for the good and sufficient reason that there is no evidence upon which to base it. (3) The court further deprived defendant of the right of self-defense in the modification of instructions 1 and 2, asked by defendant, by the insertion of the words, "if necessary." It is not the law that the danger should have been real or actual, that is, necessary, in order to justify one in acting in self-defense. If the defendant had a reasonable cause to believe, and did believe, that it was necessary for him to do what he did, then he was entitled to an acquittal. (4) A new trial should have been granted because two of the jurors had formed and expressed an opinion adverse to defendant before they were summoned as jurors, and were prejudiced against him, and this fact was not disclosed on their voir dire, and was unknown to defendant. State v. Ross, 29 Mo. 51; State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309.

Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.

(1) Instruction 10 is supported by the following authorities: State v. Partlow, 90 Mo. 608; State v. Pennington, 146 Mo. 27; State v. Gamble, 119 Mo. 427; State v. Patterson, 159 Mo. 560; State v. Parker, 106 Mo. 217; State v. Davidson, 95 Mo. 155. (2) When the facts and circumstances of this case are considered, the conduct of the defendant in Doelling's place of business, the time he went there, the language he used when requested to come later, the eagerness with which he entered the combat, the malignity with which he pursued, with open knife, his fleeing victim, there should be but little question as to the sufficiency of the evidence on which to submit the question of bringing on the difficulty or voluntarily entering into the same. (3) Instructions 1 and 2, as modified, declared the law of self-defense in a more favorable form than defendant was entitled to. (4) The court did not err in refusing to grant a new trial to defendant on the ground that two jurors had prejudged his case. State v. Ross, 74 Mo. 318; State v. Howell, 117 Mo. 342; State v. Cook, 84 Mo. 40.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

On the 18th day of October, 1902, the grand jury of Boone county, Missouri, at the October term of the circuit court, returned an indictment against the defendant, charging him with murder in the first degree of Hugo G. Doelling on the 8th day of July, 1902. The defendant was duly arraigned upon said indictment and entered his plea of not guilty thereto. At the February term, 1904, the defendant was put upon his trial before a jury, and was convicted of manslaughter in the fourth degree, and his punishment assessed at imprisonment in the State penitentiary for a term of two years. Motions for new trial and in arrest of judgment were filed in due time, heard and overruled and exceptions saved, and from the judgment and sentence, the defendant appealed to this court.

The evidence on behalf of the State tended to prove the following facts:

On the 8th day of July, 1902, Hugo G. Doelling was the proprietor of and conducted a restaurant in the city of Columbia, Boone county, Missouri. He was living with his wife and child in rooms immediately above the restaurant, and had lived in the city about one year. The defendant was an attorney at law residing and practicing at said city. An account against Doelling amounting to about forty dollars had been placed in the hands of the defendant for collection. It appears that the deceased had been slow in the payment of this bill, and the defendant in the discharge of his duty to his client had visited Doelling several times prior to the 8th of July, 1902, to collect the same. On the 8th of July, defendant's client who owned the account had called at defendant's office during his absence and requested defendant's father to ask the defendant to call at his hotel at the noon hour to see him in regard to this account. When the defendant received this information, he took the account and started to the hotel; he went first to the restaurant of Doelling and went in to see Doelling about it. Several people were in the restaurant at the time eating dinner; Doelling was busy in the dining room, and when the defendant entered the front room of the restaurant, Doelling came from the dining room to meet the defendant in the front room. It appears that Mrs. Doelling was near where they met. According to the dying declaration of the deceased, when the deceased approached the defendant, the defendant presented him the account and said, "What are you going to do about this bill?" and the deceased said "Wait, come in after dinner," and the defendant said, "You son-of-a-bitch, I won't do it, I will not wait," to which Doelling replied, "How dare you come into my house and call me such names?" To which defendant replied, "You son-of-a-bitch, I will kill you besides." At this point the deceased in his dying declaration says when he said this, "I struck him with my fist, and he then pulled his knife and cut me." Mrs. Doelling did not remember seeing her husband strike him, but says that immediately after the hot words passed between them they were in a scuffle before she realized anything. The conversation between the deceased and the defendant was in such low tones that none of the persons who were taking their dinner at the time observed that any difficulty existed between the parties at all, until their attention was directed by the scuffle between the defendant and the deceased, and none of them testified as to who began the difficulty. After they had scuffled a few seconds, Doelling put his hand on his side and said, "He has stabbed me," and ran out of the door crying "murder." Doelling then ran to the corner of the block, and then out diagonally into the middle of the street. As Doelling and the defendant separated in the restaurant, the defendant was seen holding a knife in his hand. Some of the witnesses called it a dagger, some called it a "spring button" knife, one witness said the blade was about five inches long. As Doelling went up the street the defendant followed and when Doelling went out into the middle of the street the defendant continued straight ahead and went to his room. The evidence on behalf of the defendant tends to show that the deceased felt unkindly towards him because he had insisted on his paying the account. It was in evidence that the deceased upon one occasion, speaking of the defendant, said, "If that G -- d -- -- red-headed Fleet. Gordon comes back here bothering me about that thing any more, I will break his neck and stamp him through the floor." The defendant testified that when he went into deceased's place of business, the deceased approached him and in an angry voice asked him what he wanted there, and that defendant replied politely that he had come again to see about the payment of that account, and the deceased requested him to call later in the evening; that thereupon the defendant told him that he had held this account for quite awhile and had frequently been disappointed in the promises of the deceased, and was tired fooling with him, and that thereupon, without more, the deceased struck him a heavy blow in the temple; that the blow dazed and staggered the defendant, and thereupon the deceased grabbed the defendant with his left arm around his head, pressed the defendant to his body and began choking him, and that while in this position, the defendant pulled his knife out of his pocket and cut the deceased in order to liberate himself and prevent the deceased from inflicting great bodily harm upon him. After going into the street Doelling was assisted upstairs to his rooms and the surgical examination revealed that he had received three stab wounds, one on the left shoulder, commencing at the spine and running toward the neck; a second one, about three inches from the spine between the ninth and tenth ribs, about an inch long; this second wound went straight in about two and a half inches, cutting the intercostal artery and penetrating the lung. The third wound was between the eighth and ninth ribs, about two and a half inches deep and cutting into the loop...