The State v. Heath
| Citation | 121 S.W. 149,221 Mo. 565 |
| Parties | THE STATE v. CHARLES HEATH, Appellant |
| Decision Date | 29 June 1909 |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court. -- Hon. F. C. Johnston, Judge.
Reversed and remanded.
M. E Benton, Felix Lindsay, J. A. Sturgis, W. B. Skinner and George Hubbert for appellant.
(1) Upon the evidence of provocation by violence from deceased at the time and place of the shooting, defendant was clearly entitled to at least an instruction authorizing the finding of a verdict of manslaughter of the fourth degree. State v. Sebastian, 215 Mo. 58; State v. Darling, 199 Mo. 197; State v. Weakley, 178 Mo. 423. (2) The fact that defendant may have first begun or entered into the difficulty with an intent to kill Mosier, did not deprive him of the right to withdraw from the conflict or attempt to do so in good faith, and thereby revive his right of self-defense; and the circuit court was wrong in denying his right to defend himself against the attacks of Mosier with knife and stone, if found to have provoked the difficulty. State v. Partlow, 90 Mo. 627; State v Cable, 117 Mo. 385. (3) Defendant was entitled to have instruction E given, and to put in evidence the written threat and other facts which authorized him to carry his pistol, but these were denied to him and excluded by the court. (4) The essential rights of defendant to peaceably address the teacher, seeks information with regard to the conduct of his daughter and have the directors take proper action as officers in control of the school, and to freely go upon the roadway in connection with such course, as mentioned in refused instructions D and J, should have been declared to the jury.
Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
(1) Witnesses for State testified that before defendant left the sale he gave utterance in their presence to certain expressions of ill-will and threats against deceased, and that soon thereafter he departed for the scene where the tragedy finally occurred. Thereafter counsel for defendant offered to prove by other witnesses that sometime after defendant had left the sale where these threats were uttered certain other persons engaged in conversation and used language similar to that which State's witnesses testified was used by defendant in their presence. Neither defendant nor deceased was shown to be present, but, on the contrary, the evidence and offer disclose that if any such conversations took place they were in the absence of both defendant and deceased, and between altogether disinterested parties. Upon what rule of evidence the admission of these conversations, whether threats, mockery or what, could be predicated, we are unable to conceive. It was mere hearsay of the most pronounced character, and under no circumstances admissible. State v. Evans, 55 Mo. 461; State v. Cooper, 83 Mo. 703; State v. Hack, 118 Mo. 99; State v. Crawford, 99 Mo. 94; State v. Dunkin, 116 Mo. 311. Defendant had laid no foundation for the reception of such evidence for impeachment purposes. The attention of the State's witnesses had not been particularly directed thereto, and no opportunity had been given them to deny or admit that such conversations had taken place. State v. Smith, 114 Mo. 424; State v. Yocum, 117 Mo. 625; State v. Parker, 96 Mo. 393. It did not tend to in any degree impeach any testimony submitted by the State, and however adroitly he may put his question or offer, a party will not be allowed, under the semblance of impeaching a witness, to get hearsay evidence before the jury. Goltz v. Griswold, 112 Mo. 151; Hamburger v. Rinkel, 164 Mo. 154. (2) (a) It is not for the court to single out certain isolated facts favorable to defendant's view, ignoring the facts and circumstances against him, and declare as a matter of law that such isolated facts are entitled to prominence and do not tend to prove any material fact. Such instructions have been uniformly condemned by this court. McFadin v. Catron, 120 Mo. 274; Railroad v. Stock Yards, 120 Mo. 565; Jones v. Jones, 57 Mo. 142; Barr v. Kansas City, 105 Mo. 557; State v. Edwards, 203 Mo. 545. (b) Instructions 7, 9 and 10 correctly told the jury that if defendant provoked the combat, or produced the occasion in order to have a pretext for killing his adversary, or doing him some great bodily harm, the killing was murder in the first degree, no matter to what extremity he may have been reduced in the combat. The soundness of this doctrine has been uniformly approved. State v. Gordon, 191 Mo. 124; State v. Feeley, 194 Mo. 322; State v. Vaughan, 141 Mo. 521; State v. Forsha, 190 Mo. 333; State v. Bailey, 190 Mo. 288; State v. Lewis, 118 Mo. 84; State v. Vansant, 80 Mo. 79; State v. Partlow, 90 Mo. 608; State v. McDaniel, 94 Mo. 309; State v. Rose, 92 Mo. 207. (c) It is urged that the court erred in failing to instruct on manslaughter in the fourth degree. The evidence on the part of the State tended to establish that the difficulty which resulted in the death of deceased was sought for and brought on by defendant with felonious intent, and that after having provoked same, he took advantage of it and fatally shot deceased. On the other hand, the evidence on the part of defendant tended to prove that the killing was done in self-defense. In detailing the facts defendant gave not the slightest intimation that he was actuated by any impulse, save that of self-defense from the threatening and approaching movements of deceased towards him with a knife. After stating that deceased was pressing him hard, and striking at him with a knife, and that he had retreated to a point where safety no longer permitted, he stated that he shot deceased in order to keep deceased from cutting him to pieces with the knife. All his evidence tended to prove the same condition. If the jury believed the evidence on the part of the State, defendant was guilty of murder in the first or second degree. If, on the contrary, they believed the evidence on the part of the defendant, he was not guilty of any offense, but was justifiable in the killing. There was no evidence warranting an instruction on fourth degree manslaughter. State v. Gartrell, 171 Mo. 489; State v. Meadows, 156 Mo. 110; State v. Lewis, 118 Mo. 82; State v. Ramsey, 82 Mo. 137; State v. Dunn, 80 Mo. 690; State v. McCollum, 119 Mo. 475.
This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of Lawrence county, Missouri, convicting him of murder of the second degree.
On the 5th day of August, 1907, the prosecuting attorney of McDonald county filed in the circuit court of that county an information, duly verified, charging the defendant with the murder of Clarence Mosier, which information, omitting formal parts, was as follows:
"Joseph S. Long, prosecuting attorney within and for the county of McDonald and State of Missouri, under his oath of office and on his knowledge, information and belief, informs the court that one Charles Heath, at the county of McDonald and State of Missouri, on the 22nd day of February, 1907, in and upon one Clarence Mosier, then and there being, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did make an assault, and with a dangerous and deadly weapon, to-wit, a pistol loaded then and there with powder and leaden balls, which he, the said Charles Heath, in his right hand then and there had and held, at and against him, the said Clarence Mosier, on purpose and of his malice aforethought, did shoot off and discharge and with the pistol aforesaid and the leaden balls aforesaid, then and there feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did shoot, strike, and penetrate and wound him, the said Clarence Mosier, to-wit, in the front part of the body of him, the said Clarence Mosier, giving to him, the said Clarence Mosier, at the said county of McDonald, and State of Missouri, on the 22nd day of February, A. D. 1907, with the dangerous and deadly weapon, to-wit, the pistol aforesaid, in and upon the front part of the body of him, the said Clarence Mosier, one mortal wound, of the width of about one inch and of the depth of about three inches, of which said mortal wound he, the said Clarence Mosier, at the county of McDonald and State of Missouri, on the said 22nd day of February, 1907, then and there of the mortal wound aforesaid, instantly died, and so the said Joseph S. Long, prosecuting attorney within and for McDonald county, State of Missouri, aforesaid, under his oath of office and upon his knowledge, information and belief does say that he, the said Charles Heath, him the said Clarence Mosier, in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose and of his malice aforethought, at the said county of McDonald and State of Missouri, on the 22nd day of February, A. D. 1907, did kill and murder against the peace and dignity of the State."
To this information, on August 8, 1907, the defendant entered a plea of not guilty and on the same day he filed an application for a change of venue from McDonald county, alleging bias and prejudice on the part of the inhabitants. On August 14th said application for a change of venue was taken up and by the court granted, and the cause ordered transferred to Lawrence county. Defendant duly entered into a recognizance for his appearance in said county to which said cause had been transferred, and the cause, in conformity to the order, was transferred to the Lawrence Circuit Court and all proceedings certified to that court. Subsequently, on November 26th, the trial of said cause was begun. A jury was duly...
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