The State v. Lewis

• Decision Date: 21 November 1893
• Parties: The State v. Lewis, Appellant
• Court: Missouri Supreme Court

23 S.W. 1082

118 Mo. 79

The State v. Lewis, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Platte Circuit Court. -- Hon. W. S. Herndon, Judge.

Affirmed.

William Forman and John W. Coots for appellant.

(1) The verdict was against the evidence, and was clearly the result of passion or prejudice. State v. McNamara, 100 Mo 117, and authorities cited. (2) The court erred in failing to instruct the jury as to manslaughter. State v Gassert, 65 Mo. 352; State v. Wilson, 98 Mo 440; State v. McKinzie, 102 Mo. 620. It is the duty of the court to give proper instructions, whether they are asked or not. State v. Mathews, 20 Mo. 55; State v. Brooks, 92 Mo. 542; State v. Palmer, 88 Mo. 568; Revised Statutes, 1889, sec. 4220. (3) The ninth instruction given on the motion of the state was clearly erroneous; it omits the element of defendant's felonious intent. State v. Partlow, 90 Mo. 608; State v. Talmage, 107 Mo. 543. (4) The court erred in permitting the defendant to be cross-examined upon matters not referred to by him in his examination in chief. Revised Statutes, 1889, sec. 4218; State v. McGraw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Turner, 76 Mo. 350; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129. (5) The court erred in striking out of the evidence the possession of a gun by deceased two weeks before the homicide.

R. F. Walker, Attorney General, for the state.

(1) Counsel for defendant insist that the testimony is insufficient to support the verdict and the judgment predicated thereon. The well-established rule in this state is that, when the testimony is sufficient, in the judgment of the trial court, to warrant the submission of the question of defendant's guilt or innocence to the jury, and they have found him guilty, such action will not be reviewed here unless it clearly and affirmatively appears that this discretion and judgment have been abused. State v. Moxley, 115 Mo. 644; State v. Jackson, 106 Mo. 181; State v. Lowe, 93 Mo. 547; State v. Hicks, 92 Mo. 432; State v. Hammond, 77 Mo. 158; State v. Gann, 72 Mo. 374; State v. Musick, 71 Mo. 401; State v. Orrick, 106 Mo. 111. (2) No error was committed by the trial court in refusing to instruct the jury as to manslaughter in the third degree. Instructions had been given for murder in the first and second degrees, manslaughter in the fourth degree, and self-defense. An instruction for manslaughter in the third degree would have been unwarranted and unsupported by the testimony. No rule is better settled in this state than that no instruction should ever be given that is not supported and authorized by the evidence. State v. Chambers, 87 Mo. 406; State v. Thompson, 83 Mo. 257; State v. Gerber, 80 Mo. 94; State v. Parker, 106 Mo. 225; State v. Bulling, 105 Mo. 220; State v. Herrell, 97 Mo. 106; State v. McKinzie, 102 Mo. 620; State v. Degonia, 69 Mo. 485. (3) The ninth instruction given upon the part of the state clearly defines the law as to self-defense, and is not subject to the criticism suggested and urged by counsel for appellant. It was unnecessary that this instruction should define the felonious intent of the defendant, this proposition having been submitted in other instructions already given. (4) The cross-examination of the defendant was entirely legitimate. While, it may be true, not in the same language, yet his cross-examination was restricted to the subject-matter about which he testified in his examination in chief.

OPINION

Burgess, J.

-- At the December term, 1892, of the circuit court of Platte county, the defendant was convicted of murder in the second degree, for shooting and killing one, Alf. Spencer, and, after an unsuccessful motion for a new trial, he appealed to this court.

The facts, as they appear from the record, are as follows: Deceased and defendant, previous to the killing, had a difficulty, when the deceased went before a justice of the peace and had a warrant issued for defendant upon authority of which he was arrested; he was afterwards taken before the magistrate and released until a subsequent day. A few minutes after his release defendant, Sank Modesty, Charles Corbin and Warren Fields were standing on a corner of a street in Platte City, when deceased came along with his overcoat on, with his right hand in the right pocket, and passed between the parties when defendant said to him, "howdy, Alf.;" and deceased replied, "You son-of-a-bitch," whereupon the deceased started to turn around facing defendant, making at the same time an effort to pull his hand out of his pocket, when defendant drew his pistol and shot deceased in the head back of the left ear, the ball ranging forward and upward, lodging in the temporal bone on the opposite side of the head, killing him instantly.

On the same evening he was arrested, and when asked by the officer having him in charge what he killed Alf. for, replied, "Well, I thought I had just as soon kill him now as any time." There had been bad feelings existing between the parties for some time and threats had been made by each one against the other which had been communicated to them. After the death of Spencer, a slung shot was found tied to his right arm, his hand still being in his pocket.

The court instructed for murder in the first and second degrees, on self-defense and refused to instruct for manslaughter in the third degree when asked to do so by defendant.

The first ground insisted upon by the counsel for the defendant for a reversal of the cause is, that the verdict was against the weight of the evidence and clearly the result of passion or prejudice. This contention is not borne out by the facts in the case, as disclosed by the evidence, which shows a clear case of murder upon the part of the defendant.

Another contention is, that the court should have instructed for manslaughter in some of the degrees, but no suggestion is made in defendant's brief as to what degree or what evidence authorized or entitled defendant to such an instruction. While it was the duty of the court to give instructions covering the whole law arising on the facts, whether asked or not, as held by this court in the cases of State v. Gassert, 65 Mo. 352; State v. Wilson, 98 Mo. 440, 11 S.W. 985; State v. McKinzie, 102 Mo. 620, 15 S.W. 149; it was also its duty to confine its instructions to the case made out by the testimony. State v. Brady, 87 Mo. 142; State v. Wilson, 88 Mo. 13. There was no evidence whatever upon which to predicate an instruction for manslaughter in any degree. There was not a particle of evidence tending to show that the homicide resulted from the heat of passion induced by lawful provocation. On the part of the state the testimony would have well warranted the jury in finding a verdict for murder in the first degree. State v. Kloss, 117 Mo. 591, 23 S.W. 780. On the part of the defendant the testimony tended to show that he acted in self-defense. The trial court gave instructions embracing within their scope murder in the first and second degrees, and embracing the theory of self-defense, and this was all, under the evidence, to which defendant was entitled. The homicide, as disclosed by the evidence, was either murder in the first or second degree, unless committed in self-defense, and to this extent the instructions covered the entire case.

The ninth instruction given at the instance of the state, was as follows:

"The court instructs the jury that the law does not permit a person to voluntarily seek or invite a difficulty or combat, or put himself in the way of being assaulted, in order that when hard pressed he may have a pretext to take the life of his assailant; and, if you believe from the evidence that the defendant voluntarily sought or brought on or invited the combat or difficulty in which the said Alf. Spencer lost his life, or that he provoked or commenced or brought it on by any willful act of his own, or that he voluntarily entered into the difficulty of his own free will, then you are not authorized to acquit the defendant on the ground of self-defense."

The criticism on this instruction is, we think, well founded. To voluntarily enter into a difficulty without any felonious intent or not for the purpose of wreaking malice or inflicting great bodily harm, does not make the person so doing guilty of murder. If there be mutual combat without any felonious intent, and death ensues therefrom, the offense is only manslaughter. "Where, however, the defendant in a criminal case provokes the difficulty or begins the quarrel with the purpose of taking advantage of the deceased and of taking his life or doing him some great bodily harm, then there is no self-defense in the case, however imminent the peril of the defendant may become in consequence of an attack made on him by the deceased, and when the defendant kills the deceased under such circumstances he is guilty of murder in the first degree." State v Gilmore, 95 Mo. 554, 8 S.W. 359; State v. Davidson, 95 Mo. 155, 8...