The State v. Reed
| Decision Date | 06 February 1900 |
| Citation | 55 S.W. 278,154 Mo. 122 |
| Parties | THE STATE v. REED, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. D. W. Shackleford Special Judge.
Reversed and remanded.
Blake L. Woodson and Ralph S. Latshaw for appellant.
(1) Had the defendant any rights in his store or place of business with reference to the conduct of the deceased, John Faulk that he would not have had elsewhere? If so, the court should have given instructions as asked by the defendant and should not have obscured these special rights as the court did do in paragraph 7 of the given instructions. State v. Taylor, 143 Mo. 150; State v. Kermade, 121 Mo. 405; State v. Pollard, 139 Mo. 220; Morgan v. Durfee, 69 Mo. 469. (2) The defendant's 8th instruction, abundantly sustained by the evidence in this cause, refers to an unintended killing, incident to the assault. The court's qualification has reference only to an intended killing on account of offensive language or a blow on the part of the deceased. (3) To remove from the jury every possible consideration of the death of Faulk resulting from accident or misfortune incident to the assault, the court refused to give defendant's third instruction. Plummer v. State, 4 Tex.App. 318; Aaron v. State, 31 Ga. 167; State v. Benham, 23 Ia. 154; U. S. v. Clark, 31 F. 710; Wharton Hom. (2 Ed.), sec. 470; State v. McNally, 87 Mo. 658; State v. Sims, 68 Mo. 305; State v. Mitchel, 64 Mo. 191; State v. Crabtree, 111 Mo. 140; State v. Berkley, 92 Mo. 41; State v. Thomas, 78 Mo. 338; State v. Christian, 66 Mo. 143; 9 Am. and Eng. Ency. of Law (1 Ed.), 539 and 540; Ayers v. State, 60 Miss. 709.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) Instruction numbered 7, given by the court on its own motion, fails to meet the approval of the defendant. There is practically no difference between this instruction and the one asked for by the defendant on the same subject. This instruction is practically the same as given and approved by the court in the case of State v. Taylor, 143 Mo. loc. cit. 157. The court in that case fully considered the question involved in the instruction. Kelley's Crim. Law, sec. 516. (2) Defendant objects to the latter part of instruction numbered 8, for the reason that it is an improper qualification of the instruction and has reference to the intended killing on account of offensive language or blow on the part of the deceased. The jury was entitled to these qualifications. It was proper in every respect, has been time and again approved by this court, is subject to no objection urged against it, and can not under any circumstances be said to constitute reversible error.
To a charge made against defendant of murder in the first degree, the jury returned a verdict of murder in the second degree, assessing the punishment at its minimum, 10 years in the penitentiary.
The story of the occurrence made the subject of indictment, is substantially this: Defendant kept a second-hand store where he bought, sold, and sometimes exchanged such articles as are usually kept in such establishments. He was a man nearly 64 years of age and wore glasses. Faulk, the other person mentioned in the indictment, was a laborer some 34 years old. He had been a frequent customer of defendant's and for articles purchased had been given credits by defendant to the amount of small sums and other little accommodations of that kind from time to time, which, it seems, produced in the end the average yield of that crop called gratitude. The latter part of June, 1898, Faulk bought a stove of defendant and the latter agreed that he would allow Faulk $ 3 on the purchase, to be paid with an old stove that Faulk had at home, provided it corresponded to the description which Faulk, in making the bargain, gave of it. So, Faulk took his purchase home with him, and the next day sent down to defendant's store the old stove aforesaid. This article, however, defendant soon discovered did not answer its bargained description; was in short, almost, if not entirely, worthless. Upon this, defendant wrote Faulk a note notifying him of the difference between the stove and its description and requested him to come around and arrange matters. Faulk answered this note in person along about 4 or 5 o'clock in the afternoon of June 30, 1898.
Arriving there, Faulk and defendant went through the store to the back part to examine and talk over the dispute producing stove. Having concluded their inspection, Faulk and defendant returned to the front part of the store where the conversation was renewed about the stove, Faulk insisting that he should be allowed $ 3 credit for the old stove, and when defendant declined to do this, declared he would pay nothing; and as he was in the condition that one witness terms "fighting drunk," became excited over the matter, called defendant a son of a b--- and other vile names; struck and tried to choke him, and when defendant ordered him out of the store, said "I will leave when I get ready," and struck at defendant with his dinner pail, knocking his glasses off, when defendant, greatly excited by Faulk's insults and blows, in the endeavor to enforce his order struck Faulk with his fist alone, and pushed him at the same time, and Faulk with his face towards defendant and his back to the front door close to which he was, fell backwards on to the asphalt sidewalk, and received such a wound on the protuberance or occipital bone as resulted in a fracture of that part of the skull and his death in a few moments. Just at the outside of the front door was a lawn mower, chain, and a grubbing hoe and pick; the two last named without handles were lying on the sidewalk. Faulk's feet, as he backed out of the door became entangled and he fell over the lawn mower, breaking a portion of it off. The foregoing facts are testified to by Root who was present in the store right close by the contending parties, by Hayes who stood on the sidewalk, only four feet wide, at the front door and watched the controversy from its inception, and by defendant himself. As to what occurred in the store, there is no dispute, certainly up to the time of the blow which defendant struck Faulk, which caused his fall out of the door, some of the witnesses for the State asserting that they saw this blow struck by defendant with an unhandled pick on the back part of Faulk's head, while he was going out of the door with his face to the street.
Two physicians, the coroner and his deputy stated the blow was given by some blunt instrument, and that it could not be done by a simple fall on an asphalt pavement. The question was not asked any witness, lay or professional, whether the fracture could not have been caused by Faulk's falling on the pick as it lay on the sidewalk.
In this case we are foreclosed, and with a strict foreclosure, from passing on the action of the trial court in relation to impanelling jurors; and as to giving time to defendant's counsel to consult together before introducing evidence on behalf of their client, since none of these matters were excepted to at the time of their occurrence, and such exceptions set forth in the motion for a new trial and preserved in the bill of exceptions; and the fact that affidavits were made and incorporated in the bill of exceptions in order to preserve the matters aforesaid, does not have any such preservative effect, as has been so often decided by this court. When the lawyers of this State will learn this simple rule of procedure is unknown. A few cases on the subject may not be unimpertinent: [State v. Hayes, 81 Mo. 574; State v. Musick, 101 Mo. 260, 14 S.W. 212; State v. Brewer, 109 Mo. 648, 19 S.W. 96; State v. Blunt, 110 Mo. 322, 19 S.W. 650; State v. Howard, 118 Mo. 127, 24 S.W. 41 et seq.; City of Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202.]
But exceptions were saved by defendant to the giving of all of the State's instructions and to the refusal to give certain instructions asked by him. The instructions on the part of the State so far as necessary to quote them, are the following:
Par. 7. "If you find from the evidence that the deceased went to the defendant's place of business and that there a dispute arose between them in which the deceased assaulted the defendant or used opprobrious epithets or threats toward him, then the defendant had the right to order and eject the deceased from said premises by whatever force or means as were reasonably necessary, short of taking his life or doing him some serious bodily harm, and if the defendant in lawfully ejecting him from said store-house or place of business killed him without the use of any deadly weapon and without taking any undue advantage of him and without using any cruel and unusual manner towards him, then you must find the defendant not guilty."
To continue reading
Request your trial