The State v. Hopkins

• Decision Date: 03 June 1919
• Citation: 213 S.W. 126,278 Mo. 388
• Parties: THE STATE v. LEE HOPKINS, Appellant
• Court: Missouri Supreme Court

213 S.W. 126

278 Mo. 388

THE STATE v. LEE HOPKINS, Appellant

Supreme Court of Missouri, Second Division

June 3, 1919

Appeal from Howell Circuit Court. -- Hon. E. P. Dorris, Judge.

Reversed and remanded.

M. E Morrow for appellant.

(1) There was no evidence whatever that the rock used by the defendant was a deadly weapon, except the exhibition of the "bloody rock" brought into court by the State's witness, Lon Callison, which was never connected with the defendant. The court therefore erred in not instructing the jury on common assault. State v. Schloss, 93 Mo 361; State v. West, 6 Jones (N. C.), 505; 2 Bishop on Criminal Law, sec. 681; State v. Harris, 209 Mo 423. (2) An instruction that concedes the right of self-defense is destroyed by adding the words: "If the defendant voluntarily entered into the difficulty." Instruction four was, therefore, error. State v. Rapp, 142 Mo. 443.

Frank W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for respondent.

(1) The court did not err in refusing an instruction on common assault. There was sufficient evidence showing that the assault was made with a deadly weapon. State v. Miller, 264 Mo. 403; State v. Harris, 209 Mo. 39; State v. Bowles, 146 Mo. 13; State v. Barton, 142 Mo. 55. (2) Instruction 4 taken in connection with instruction 5, clearly defines defendant's right of self-defense. State v. McKenzie, 177 Mo. 713; State v. Gordon, 191 Mo. 26; State v. Sebastian, 215 Mo. 84; State v. Kloss, 117 Mo. 603; State v. Partlow, 90 Mo. 612; State v. Starr, 38 Mo. 74; State v. Hays, 23 Mo. 318.

WILLIAMS, P. J. Faris, J., concurs; Walker, J., dissents.

OPINION

WILLIAMS, P. J.

Upon an information charging him with assault with intent to kill, upon one Cledy Fox, defendant was tried in the Circuit Court of Howell County, found guilty, and his punishment was assessed at a fine of $ 100.

The evidence upon the part of the State may be summarized as follows:

The assault occurred on Sunday, May 26, 1918, near a country church in Howell County. The defendant and the prosecuting witness, Fox, were young men, living in that neighborhood, and on the day in question attended Sunday School at the country church. The prosecuting witness left the church first, and after going down the road about 150 yards took a position at rest upon a roadside fence. Shortly thereafter defendant and a companion left the church house and walked down the road, and as they passed the prosecuting witness spoke to him. Thereupon the prosecuting witness made the following inquiry, "Did you fellows have a good time at the dance last night?" and the defendant replied, "None of your G D d business; are you looking for something?" and immediately grabbed a rock and threw the same at the prosecuting witness, missing him.

Fox jumped off the fence, and defendant picked up another rock and was in the act of throwing when Fox's mother ran in between them. Defendant ordered her out of the way and then threw the rock at Fox, striking him a glancing blow therewith, and then reached down for another rock, saying, "I'll knock your G D d brains out."

At this time Fox, having moved up close to defendant, pushed him a few steps up the road. At this point defendant hit Fox with another rock. They clinched and fell to the ground, Fox on top. Defendant succeeded in turning him over and then struck him on the head with a rock. By-standers pulled defendant off of Fox, and thereupon Fox choked the defendant. Defendant released himself, and mounted a mule and was riding away when Fox threw a small rock, striking defendant in the back.

Fox denied that he rushed towards defendant with a billy when defendant first spoke to him, but stated that after defendant had thrown a rock at him he ran up close to defendant to keep him from throwing another rock.

Shortly after the encounter, Fox went to the office of a physician to have his wounds dressed. The physician testified that there were many gashes all over Fox's scalp, except the back portion thereof. The wounds upon the head required about twenty-five stitches.

From the evidence it may also be inferred that bad blood existed between these two young men prior to this encounter, but the exact cause of the existence thereof does not appear from the record.

The evidence upon the part of the defense may be summarized as follows:

As defendant and his companion passed Fox on the road, Fox asked them if they were homeward bound, and defendant replied in the affirmative. Fox then asked them if they were at the dance the night before. Defendant said that he was and asked why "The Turkeys" (evidently a nick name applied to the family of the prosecuting witness) were not there. Thereupon Fox said "he didn't know, by G d, that they had to go," and jumped from the fence and drew a billy from his pocket as he advanced towards the defendant. Defendant then picked up a rock and Fox came out into the road and hollowed, "Hey!" Defendant then threw a rock at Fox, but missed him, and picked up another rock just as Fox's mother stepped in between them. At his command she stepped out of the way and he threw at Fox a second time, missing, and then turned, reaching for another rock. At this juncture Fox ran up close to defendant, striking him with a billy. The stroke knocked defendant to his hands and knees and stunned him. Defendant jumped up with a rock in his hand and hit Fox in the head with it. They clinched and fell to the ground, and defendant was on top of Fox hitting Fox with a rock when some one pulled him off. Defendant thereupon took the billy away from Fox, and Fox's parents took the billy away from defendant and held defendant while Fox choked him. Defendant's companion helped free defendant. Defendant then fled and mounted a mule and started to ride away when Fox threw a rock at him, striking him in the back.

In rebuttal the State was permitted to introduce in evidence over defendant's objection a certain rock which the witness, who was not present at the fight, picked up at the scene of the fight a short time thereafter. This witness stated that there were a number of rocks in the road where he picked this one up and at the time he picked up the rock it had blood and hair upon it.

The only instruction of which appellant makes complaint was instruction four given by the court as follows:

"The law of self-defense is the law of necessity and does not imply the right of attack, nor will it avail in any case where the difficulty is sought or brought on by the party's own wilful act, or where he voluntarily and of his own free will enters into it...