White v. Maxcy

• Citation: 64 Mo. 552
• Parties: MARY WHITE, Respondent, v. JAMES G. MAXCY, Appellant.
• Decision Date: 30 April 1877
• Court: United States State Supreme Court of Missouri

64 Mo. 552

MARY WHITE, Respondent,

v.JAMES G. MAXCY, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Miller County Circuit Court.

Lay & Belch, for Appellant, cited: Wagn. Stat. 1020, § 41; Walther vs. Warner, 26 Mo. 146, 147; 1 Chit. Pl. p. 405; 2 Chit. Pl. pp. 494, 495; 1 Chit. Pl. pp. 387, 388; 16 Mass. 22; Kennayde vs. Pacific R. R., 45 Mo. 255; 1 Hempst. 238; Steel vs. Steel, 1 Nev. 27; Mitchell vs. Chaps, 12 Cush. 278; 13 Pick. 94.

Ewing & Smith, with Rollins, for Respondent, cited: Wagn. Stat. 520, § 3; Kennayde vs. P. R. R., 45 Mo. 255; State vs. Patton, 42 Mo. 530-537; Hewitt vs. Harvey, 46 Mo. 363; Reed vs. Inhabitants of Mertfield, 13 Pick. 94; McKeon vs. Citizens' R. R. Co., 42 Mo. 79; McDermott vs. Donnegan, 44 Mo. 85; Kennedy vs. N. Mo. R. R. Co., 36 Mo. 351; Hoffman vs. Ackley, 34 Mo. 277; Turner vs. Loler, 34 Mo. 461; Hunter vs. Miller, 36 Mo. 143; Orth vs. Dorschlein, 32 Mo. 366; Gullett vs. Hoynorton, 15 Mo. 400; Stephens vs. Bank of Missouri, 15 Mo. 143.

NAPTON, Judge, delivered the opinion of the court.

This suit originated in Pulaski county, but was removed to Miller county at the instance of defendant. The petition in the case is as follows:

“Plaintiff states that she was the wife of Samuel White, late of the county of Pulaski, deceased; that James G. Maxcy, of the county of Pulaski aforesaid, on the third day of April, A. D., 1873, with force of arms, did wrongfully shoot and mortally wound her husband, Samuel White, of which mortal wound her husband, Samuel White, on the fourth day of April, 1873, died; that the defendant, James G. Maxcy, wrongfully shot and killed her husband with a pistol loaded with gunpowder and ball, which the defendant then and there in his hand had, held and shot off and discharged at and against the right side of her said husband, Samuel White, inflicting a mortal wound, of which said mortal wound her said husband, Samuel White, on the fourth day of April, 1873, died. Plaintiff further states, that the death of her said husband, Samuel White, was caused by the wrongful act of the defendant James G. Maxcy, by the means and in the manner aforesaid.”

“Plaintiff states that by the wrongful act and means aforesaid, done and used by the defendant, James G. Maxcy, by shooting and killing her said husband, Samuel White, she is damaged to the amount of five thousand dollars, for which she asks judgment.”

To this petition there was a demurrer which was overruled, and the defendant filed an answer denying all the allegations of the petition, and affirmatively declared the facts to have been as follows:

“That at the time and place mentioned in the petition, the said Samuel White did, with two stones, one of the size and weight of two pounds, the other of the size and weight of four pounds, in and upon the body of the defendant, wilfully, unlawfully and feloniously make an assault, with the intent, the said defendant, then and there to kill and murder; that the defendant was then and there, and thereby, placed in great danger; that the defendant, to defend himself and to save himself from great bodily harm, and to save his own life, did shoot the said Samuel White, using no more force or violence, and doing no more damage, than was necessary to defend himself and save himself from great bodily harm, which is the same shooting mentioned in the petition.”

To this answer there was filed a replication denying the facts stated in the answer.

The case was tried at the April term, 1874, of the Miller county circuit court. There was a verdict in favor of the plaintiff, for three thousand dollars, and the usual motions for a new trial and in arrest of judgment.

It is unnecessary, to an examination of the questions presented for our decision, to give any details of the testimony. There is very little, if any, discrepancy among the witnesses as to the main facts, which appear to have been about as follows:

White and Maxcy were neighbors. On the morning of the third of April, after breakfast, White went over to Maxcy's to get a mule colt, which had strayed away, and was in Maxcy's stable; and while there, a dispute arose about some rails. During this dispute very offensive language was used on both sides, and Maxcy had a knife in his hands. White, being incensed at the epithets being bestowed on him, asked Maxcy to lay down his knife, and, pulling off his coat, invited him to a fair fight. Maxcy, then, declining the proposed combat, sent his son off to the house, which was distant about seventy yards from the place where this controversy arose, for his pistol, and whilst the boy was gone to the house, White picked up two stones and threw them at Maxcy, who retreated and dodged them. White then mounted his horse and started for home, but Maxcy, who had been previously retreating, meeting his son and getting the pistol from him, turned around and started after White, who was riding off on a stallion; whilst Maxcy was thus pursuing White with a pistol in his hands, White got down from his horse, on the side farthest from Maxcy, and stooped down, either with a view to pick up a rock, or as seems most probable, to avoid being shot. At all events, as the horse turned, so as to leave White's person exposed, Maxcy fired and killed him.

After the conclusion of the defendant's evidence, a motion was made, in the nature of a demurrer to the evidence, which again presented the question in regard to the sufficiency of the petition.

The instructions given by the court, at the instance of the plaintiff, were as follows:

1. “If the jury believe from the evidence, that the deceased, White, on or about the third day of April, 1873, went to the residence of the defendant, Maxcy, on hunt of a mule, and that whilst there, Maxcy, by his words and conduct, provoked White to offer to fight Maxcy if Maxcy would put up his knife, and that Maxcy sent his son to the house for his pistol, and that the said White afterwards called upon defendant to put up his knife and fight a fair fight, and that the defendant refused to put up his knife; that White picked up two stones, and that Maxcy retreated in the direction of his house, and that while so retreating White moved towards Maxcy and threw said stones at Maxcy with great force, and that one or both of them would have struck Maxcy had he not dodged the same, and that after White threw said stones, he turned toward his horse and got on him, preparatory to leaving, and that Maxcy, after the stones were thrown, proceeded towards his house till he met his son and obtained his pistol, and that said Maxcy, thereupon, returned with said pistol, and followed said White and shot him; then the said killing was wrongful, and the jury must find for the plaintiff, provided that they find that at the date of said killing plaintiff was the wife of deceased, even if they should further find from the evidence, that, as the defendant Maxcy approached White with his pistol, White stooped to pick up a rock, or that he did so pick up a rock, and the picking up or attempt to pick up the rock at such stage of the difficulty, was no justification for the shooting, and the jury must so decide.”

2. “If the jury find for the plaintiff they will assess her damages at a sum not exceeding five thousand dollars.”

3. “The right of self defense rests alone upon necessity, and does not imply the right of attack, and the plea of justification in self defense cannot avail in any case, when it appears that the difficulty was sought for or induced by the act of the defendant, in order to afford him a pretense for wreaking his malice. And if you find from the evidence, that the defendant, James G. Maxcy, and the deceased had a difficulty, which resulted in the death of the deceased, and that the defendant commenced the difficulty or brought it on by any wilful or unlawful act of his, or that he voluntarily, and of his own free will and inclination, entered into the difficulty, then there is no self-defense in the case, and you should not acquit on that ground; and in that case it makes no difference how high the passion of the defendant may have arisen, nor how imminent the peril may have been in which the defendant was placed.”

4. “It stands admitted by the pleadings in this case, that the defendant shot and killed the said White, at the time and place stated in the plaintiff's petition, and, therefore, if the jury shall find from the evidence that at the time of the death of said White, he was the husband of the plaintiff, then the jury must find for the plaintiff, and assess her damages at not exceeding five thousand dollars, unless the jury shall further believe from the evidence that such shooting and killing of said White by defendant was committed in resisting an attempt on the part of said White to murder defendant, or was committed in the lawful defense of defendant, when there was a reasonable cause to apprehend a design to commit a felony, or to do some great personal injury, and there was reasonable cause to apprehend immediate danger of such designs being accomplished.”

The following instructions were also given for the defendant...