The State v. Little
| Decision Date | 26 May 1910 |
| Citation | 128 S.W. 971,228 Mo. 273 |
| Parties | THE STATE v. ALBERT LITTLE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. J. L. Fort, Judge.
Reversed and remanded.
Ward & Collins and Rice A. Pierce for appellant.
(1) The information in this case is insufficient. (a) It fails to charge with what the assault was made. State v Ferguson, 152 Mo. 92; 2 Hawk. P. C., ch. 22, sec. 60. (b) It fails to charge that the mortal wound was feloniously given. State v. Green, 111 Mo. 585; State v Williams, 184 Mo. 261; State v. Woodward, 191 Mo. 617. (2) Defendant's plea in abatement should have been sustained. R. S. 1899, sec. 2476; Laws 1901, p. 138. This plea in abatement in proper form, duly sworn to, was presented to the court, and all the facts therein alleged were fully established and not denied, yet the court overruled said plea, and defendant saved his exceptions. (3) The court erred in admitting incompetent, irrelevant and immaterial testimony offered by the State, over defendant's objections and exceptions. There was absolutely not a word nor a circumstance indicating a conspiracy formed between McElvain, Little or any other person. No evidence that McElvain knew that there had ever existed (if there ever had) any difficulty between Little and Langdon. No evidence or circumstance of a formed design, plan or confederation between Little and McElvain, or any of the other parties in this crowd, to say or do anything whatever to Ed Langdon. "A defendant cannot be bound by statements and acts of third parties made out of his presence." State v. Newcomb, 220 Mo. 63; State v. Jaeger, 66 Mo. 180; State v Rothchild, 68 Mo. 52; State v. Richard, 194 Mo 326; State v. Patrick, 107 Mo. 147; State v Woodward, 191 Mo. 617. A conspiracy was neither charged nor proved, yet the court permitted a great number of witnesses to detail what divers persons said, as well as the conduct and appearance of such divers persons, not in the presence nor hearing of the defendant, when defendant knew nothing of the statements, acts, and conduct of such other persons. State v. Roberts, 201 Mo. 727; State v. Daubert, 42 Mo. 239; State v. Walker, 98 Mo. 95; State v. Duncan, 64 Mo. 262; State v. Ross, 29 Mo. 32; State v. Boatright, 182 Mo. 33. The instructions given by the court were erroneous. (4) Instruction "A" is not the law for the following reasons: (a) because it was the submission to the jury of a matter not in issue in the case, deceased not being on trial and there being no evidence that he went and armed himself with the honest purpose of protecting himself against a further attack by defendant. "Instruction in criminal cases must be predicated on the facts brought out at the trial; for instructions not supported by evidence should not be given." State v. Hargraves, 188 Mo. 337; State v. Harris, 59 Mo. 550; State v. Brown, 63 Mo. 439; State v. Turlington, 102 Mo. 642; Estes v. Shoe Co., 155 Mo. 577; State v. Lewis, 118 Mo. 79. (b) This instruction in effect told the jury that deceased had a right to go and get a pistol, and thereby placed upon defendant the wrongdoing of deceased. (c) And said instruction, ending with this phrase, that deceased had a right "to defend himself against a further attack by defendant," assumes that deceased had been attacked by defendant in the first altercation. Who attacked was disputed, so this instruction assumes as a fact questions for the jury. (5) Instruction "B" was altogether unwarranted, there being no evidence of a conspiracy in this case. The court in said instruction fails to tell the jury what facts constitute conspiracy, or to define in any way the word "conspiracy," and for that reason the instruction is erroneous. State v. Davies, 80 Mo.App. 239. Instruction "C" is erroneous for the following reasons: 1. Because there is no evidence whatever upon which to base it. State v. Walker, 196 Mo. 73; State v. Packwood, 26 Mo. 340; State v. Chambers, 87 Mo. 406; State v. Smith, 125 Mo. 2; State v. Elsey, 201 Mo. 561. No witness gave any testimony to indicate, nor were there any circumstances in evidence to indicate (a) that "defendant had made up his mind to whip Ed Langdon, and (b) that he borrowed a revolver from Jerry McElvain for the purpose and with the intention of killing said Langdon; . . . And (c) in pursuance to said said purpose and intention, defendant provoked and entered into a difficulty with said Langdon." 2. Said instruction fails wholly to take into consideration the time that elapsed between the fist fight and the killing; it fails to make the qualifications that a party who enters into a difficulty may abandon it, and if the other party still pursues him, his right of self-defense still remains. State v. Partlow, 90 Mo. 627; State v. Webb, 216 Mo. 388; 1 Bishop (5 Ed.), sec. 871; State v. Stultz, 97 Mo. 26; State v. Heath, 221 Mo. 589; State v. Gordon, 191 Mo. 124; Brouster v. Fox, 117 Mo.App. 728; State v. Sebastian, 215 Mo. 84. (6) Instruction "D" is erroneous for the following reasons: 1. There is no evidence whatever upon which said instruction could be based, namely, "that (a) defendant made up his mind to whip Ed Langdon; that (b) he borrowed a revolver for the purpose and with the intention of killing Langdon;" and (c) "in pursuance of said purpose, defendant provoked a difficulty with Langdon." 2. Said instruction omits altogether the qualifications as to whether, after the fist fight alluded to in this instruction, the defendant abandoned same, "in the space of repentance that there always is open, where a combatant in good faith, may abandon the conflict." See cases, supra. 3. Said instruction makes defendant's right of self-defense, after the fist fight was over and had been abandoned by both parties, depend entirely upon whether or not Ed Langdon's passion, if any, occasioned by said fist fight, had cooled. 4. It took defendant's right of self-defense away from him, even though the fist fight had been by him honestly abandoned, and even though Ed Langdon, after the fist fight, procured a revolver and first attempted to shoot, or did shoot, the defendant, and although defendant was forced to shoot Langdon in order to save his own life. 5. This instruction permitted the jury to convict the defendant, even though he was attacked by Langdon with a pistol and actually shot at, provided Langdon had not cooled off from the fist fight. 6. It permitted Langdon, because he and Little had had a fist fight, to go out and arm himself with a pistol and voluntarily return and shoot Little; and Little must either stand and be shot down or go to the penitentiary. 7. It switches the questions of cooling time, violent passion, etc., from the defendant to the deceased; and takes from the defendant the mitigation afforded him by the law, when he kills a man in a violent passion, before his blood has cooled. 8. The question of "passion and cooling time" is a question of mitigating circumstances, lowering the crime from murder to manslaughter -- always a question for the defendant and not a question as to the deceased. 21 Am. and Eng. Ency. Law (2 Ed.), pp. 174-177; R. S. 1899, sec. 1833; State v. Ellis, 74 Mo. 207; State v. Robertson, 178 Mo. 496. (7) Instruction "E" is open to all the criticisms, objections and errors of the one above. It switches the question of cooling time and violent passion from the defendant to the deceased and cuts out defendant's right of self-defense. Here the combat had ended, and Little had asked Langdon to come have a drink and make up and be friends; and he had, "in the space of repentance, in good faith, withdrawn and abandoned the conflict, and his right of self-defense thereupon revived; and this would have been true notwithstanding he began the combat with a felonious and murderous design." State v. Lockett, 168 Mo. 489; State v. Sebastian, 215 Mo. 58; State v. Cable, 117 Mo. 485; State v. Patterson, 159 Mo. 560; State v. Heath, 221 Mo. 587. The uncontradicted evidence shows in this case that D. P. Huffman had threatened defendant's life, which threat had been communicated to defendant, and that defendant was in town on the very night of this killing, and that long before defendant even knew that Langdon was with his brother-in-law, Pillow, the defendant, in order to defend himself against the anticipated danger of the execution of Huffman's threats, borrowed a pistol. At the time he borrowed the pistol, he had not had a cross word with Langdon and there was no expected trouble between them, and there is no evidence to show that the defendant anticipated meeting Langdon; yet the State was attempting to make great capital out of the fact that the defendant had borrowed a pistol, and undertaking to make it appear (without any testimony to substantiate it) that the defendant was anticipating trouble with Langdon. The right to carry this pistol under such circumstances was guaranteed to the defendant by the statutes of this State; and since it was so guaranteed, the defendant was entitled to an instruction to that effect. R. S. 1899, sec. 1836; State v. Venable, 117 Mo.App. 501. (8) The court erred in refusing defendant's instruction 11. This instruction simply guarantees to the defendant the right of self-defense, notwithstanding the fist fight, provided the jury found "that defendant and deceased voluntarily abandoned said difficulty," and that thereafter the deceased went out and armed himself and came back and renewed the difficulty. This is in accordance with the well-settled law in this State. State v. Patterson, 159 Mo. 560; State v. Cable, 117 Mo. 385; State v. Partlow, 90 Mo. 627; State v. Lockett, 168 Mo. 480; State v. Gordon, 191 Mo. 124; State v. Heath, 221 Mo. 588; State v. Sebastian, 215 Mo. 84. If, however, that instruction was...
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