The State v. Turner

• Decision Date: 20 December 1912
• Citation: 152 S.W. 313,246 Mo. 598
• Parties: THE STATE v. KELLY TURNER, Appellant
• Court: Missouri Supreme Court

152 S.W. 313

246 Mo. 598

THE STATE v. KELLY TURNER, Appellant

Supreme Court of Missouri, Second Division

December 20, 1912

Appeal from Howard Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Reversed and remanded.

Samuel C. Major for appellant.

(1) (a) The court erred in giving instruction 4 on behalf of the State. The defendant did not attempt to prove his good character and the fact that he did not should not have been commented upon. This instruction could but have been regarded as a comment on that fact and was very prejudicial to defendant. (b) The court erred in giving instruction 5. There was no evidence of any conspiracy between this defendant and any one. (c) Instruction 8 given by the court on the part of the State should not have been given. The only witnesses who testified that the deceased used "opprobrious epithets and abusive words" also testified that he struck at the defendant's brother and at the time defendant cut him had the brother of the defendant about the neck and in his grasp. We submit that this instruction could have had but one effect and that to confuse and mislead the jury. If the defendant cut the deceased while the defendant was in a violent passion, suddenly aroused by the deceased assaulting the brother of the defendant by striking him and grabbing him about the neck (as testified to by the witnesses) then he was guilty of manslaughter in the fourth degree, and there should have been an instruction for manslaughter instead of this abstract proposition of law. (2) The court erred in refusing to permit the testimony of witnesses in regard to the previous trouble between the deceased and the Turner family and refused to permit the defendant to show the nature and kind of said trouble, and the final disposition of the matter in the court of the justice of the peace. It was relevant and competent as tending to corroborate the defendant. It was relevant and competent to show the deceased's feelings towards the defendant and his brother, as showing who sought and brought on the difficulty and who was the aggressor. (3) The principal ground upon which defendant relies for a reversal is that, under the evidence in this case, the court should have instructed the jury on manslaughter in the fourth degree. Defendant is entitled to instructions based on his own unsupported testimony. State v. Darling, 199 Mo 168; State v. Fredericks, 136 Mo. 51; State v Anderson, 86 Mo. 309; State v. Partlow, 90 Mo. 608. In a prosecution for murder, whatever grades of the crime defendant's testimony may tend to prove should be covered by appropriate instructions, although his evidence may not be true. State v. Richardson, 194 Mo. 326. The court must submit the grades of the offense as shown by the testimony of the accused, though the testimony of the accused is uncorroborated. State v. Heath, 221 Mo. 565. "Nor would the shooting of a person be anything more than manslaughter where it was done in a moment of passion aroused by an assault upon, and wrongful treatment of the brother of the slayer." Wharton on Homicide (3 Ed.), sec. 183; Guffee v. State, 8 Tex.App. 187; 21 Cyc. 750; Collins v. United States, 150 U.S. 62; Warnach v. State, 3 Ga.App. 590; Willis v. State, 75 S.W. 790; Crockett v. Commonwealth, 100 Ky. 382; State v. Gallman, 79 S.C. 229; 13 Am. & Eng. Annotated Cases, note pp. 1084 and 1085; State v. Sebastain, 215 Mo. 80. The "fact that self-defense was sought to be shown does not render unnecessary an instruction authorizing a conviction, for manslaughter." Wharton on Homicide, sec. 165; State v. McKinzie, 102 Mo. 632; State v. Matthews, 148 Mo. 197; State v. Barrett, 203 Mo. 661; State v. Bates, 239 Mo. 507.

Elliott W. Major, Attorney-General, Charles G. Revelle, Assistant Attorney-General, and A. W. Stewart for the State.

(1) The court properly refused to admit testimony offered by the defendant in regard to a previous trouble between the deceased and the family of the brother of defendant. State v. Ramsey, 82 Mo. 137. (2) The court committed no error in modifying instruction 4 by striking out "apparently so." State v. Clay, 201 Mo. 688; State v. Frazier, 137 Mo. 333; State v. McKenzie, 177 Mo. 713; State v. Parker, 106 Mo. 225. (3) The refusal of an instruction is not erroneous when other instructions are given containing the same principle. State v. Walton, 74 Mo. 285. (4) If a person provokes a combat or brings on a difficulty, in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, and this without regard to the extent to which such person may have been reduced in the combat. State v. Darling, 202 Mo. 151; State v. Dunn, 80 Mo. 681; 2 Bishop Crim. Law, sec. 715; 1 Whart. Crim. Law (8 Ed.), secs. 474-476; State v. Christian, 66 Mo. 145; State v. Underwood, 57 Mo. 40; State v. Linney, 52 Mo. 40; State v. Starr, 38 Mo. 70. If the deceased made threats against defendant, and they were communicated to the defendant, still that would not justify the assault when the deceased was making no effort or attempt to carry out such threats. State v. Evans, 65 Mo. 581. The right to defend his brother was no greater than the brother's right to defend himself. State v. Melton, 102 Mo. 689; State v. Eastham, 240 Mo. 251. The evidence on the part of the State tended to show the difficulty which resulted in the death of deceased was sought for and brought on by the defendant; on the part of the defendant the evidence tended to show self-defense. If the jury believed the State, it was murder; if the jury believed the defense, it was justifiable homicide. State v. Ramsey, 82 Mo. 138; State v. Jones, 79 Mo. 445. When the existence of deliberate malice in the slayer is once ascertained, its continuance down to the perpetration of the meditated act must be presumed, unless there is evidence to repel it. 1 Whart. Crim. Law (8 Ed.), secs. 477, 114. When the defendant a short time before the killing had made threats against the deceased, an instruction for manslaughter would not have been proper. State v. Johnson, 76 Mo. 128.

BLAIR, C. Roy, C., concurs. Ferriss, J., dissents from paragraph six of the opinion.

OPINION

BLAIR, C. --

Appellant, his brother Dudley Turner, and Worth Lee were jointly indicted in the Howard Circuit Court for murder. Appellant was tried separately, convicted of murder in the second degree and sentenced to the penitentiary for a term of ten years. From that sentence this appeal was taken. The killing occurred at the town of New Franklin about 11 p. m. August 27, 1910. Johnson, the deceased, was a very large man, being six feet, six inches tall, weighing two hundred and eighty pounds and possessing unusual strength. During the afternoon of August 27, he, with two companions, Carson and Miller, had been drinking beer and whiskey but the evidence leaves it doubtful to what extent he was affected by his indulgence though the evidence for the State tends to show he was conducting himself peaceably at all times. Appellant and his brother and Lee came into New Franklin between four and five o'clock, an hour or so after deceased arrived there, and there is some evidence Dudley Turner had been drinking but there is no evidence he was under the influence of liquor at the time of the tragedy. In view of the character of the questions presented it is unnecessary to set out in detail the testimony of the State's witnesses. There was some, though not much, evidence tending to show a conspiracy on the part of the three defendants to attack deceased but there is little if anything, unless it be the event, to indicate the purpose of the conspiracy, if it existed, whether felonious or otherwise. At some time that evening Dudley Turner had supplied himself with what the witnesses term a wagon hammer but it does not appear when or where he did so nor that appellant was aware his brother was armed. So far as concerns the occurrence at the time of the killing there is some disagreement among the witnesses for the State, owing largely to the excitement, the crowd and the darkness. Without further discussing or attempting to harmonize these discrepancies it is sufficient for the purposes of this appeal to say there was, on the part of the State, substantial evidence that Dudley Turner accosted deceased, telling him he wanted to see him, and when the latter approached called him to account for alleged abuse of appellant earlier in the evening, called him vile names, told him he would hit him with his hammer, seized him by the hand and twice struck him on the shoulder. At this juncture appellant, who had been standing near cursing and swearing, stepped close to deceased and stabbed him in the abdomen, inflicting a wound from which death ensued in a few days. According to some of the witnesses deceased during this time made no effort to defend himself in any way and said nothing save that he did not want to fight, except that when Dudley Turner struck him deceased told him not to strike him again. The evidence for appellant, in several particulars corroborated by that for the State, tended to show deceased had long borne a grudge against the Turners, due to the fact James Turner once had him arrested; there was evidence he had made threats he would "get revenge on the Turners" and but a short time before he was killed in referring to defendants had said, in the presence of several people, he could "clean up that gang very easily." According to witnesses for both the State and appellant there was no truculence in Dudley Turner's manner or tone when he first accosted deceased and told him he wanted to see him and the evidence for appellant is that when deceased came to where Dudley Turner was standing the latter asked him why he had cursed and abused appellant, adding he...