Opinion
May 25, 1928.
1. MURDER: Evidence for State: Minor Conflicts. It is the duty of the jury to take into consideration all the evidence, and where the evidence for the State conflicts on minor points they can select from the conflicts such parts as to them seem most reasonable.
2. ____: Second Degree: Sufficient Evidence: Scuffle. Where defendant was armed when he met deceased on a public street, evidently expecting trouble, and shot him twice and after a pause shot him a third time, and deceased had no pistol, and according to the testimony of three witnesses first introduced by the State the jury could reasonably infer that no act of aggression threatened great bodily harm to defendant, and according to the testimony of other witnesses for the State deceased advanced upon defendant after the first shot was fired, struck at him, there was a scuffle, and then deceased backed away, and after the shooting there was a bruise on defendant's cheek, his throat was scratched and his shirt collar was broken, from all of which the jury might infer that deceased seized defendant by the collar and perhaps struck him after he was fatally shot, the evidence was sufficient to warrant an information charging murder in the second degree.
3. ____: ____: Elements. As a general rule, murder in the second degree arises from an intentional killing with a deadly weapon, in the absence of proof tending to show murder in the first degree or facts which will reduce the killing to manslaughter or excusable or justifiable homicide.
4. ____: Manslaughter: Passion. A defendant charged with murder may be convicted of manslaughter where the facts warrant it. Where the evidence tends to show that defendant knew that deceased was not armed, it is for the jury to say whether an assault upon defendant by deceased with his fist, if he made one, was not of a character to threaten defendant's life or inflict great bodily harm upon him, but sufficient to arouse a sudden heat of passion which reduced the killing to manslaughter.
5. ____: Self-Defense: Blows: Resistance: Apprehension. A defendant has a right of self-defense, but no right to use more force to protect himself than is necessary. A blow of the fist or common assault will not ordinarily justify a killing in self-defense; there must be a well-founded apprehension of great bodily harm.
6. ____: Instruction: Manslaughter: Justifiable Homicide and Lawful Defense. An instruction on manslaughter authorizing a verdict of guilty if defendant "intentionally shot and killed deceased without malice aforethought, and under such circumstances that it was not justifiable or excusable homicide, and not in the lawful defense of his person." was not erroneous on the theory that justifiable homicide is homicide in the lawful defense of the defendant's person, and that by connecting these words with "and" as if they were two separate conditions the jury were confused and an unnecessary burden was placed upon defendant, where the instruction ends with the further words that "justifiable homicide as used in these instructions means the killing of another in lawful defense of one's person."
7. MURDER: Instruction: Excusable Homicide: Definition: Broader than Statute. An instruction defining "excusable homicide" as the "accidental killing of another" must be considered with reference to the facts of the case which exclude any sudden combat without a dangerous weapon and the correction of a child, servant or apprentice, and as therefore applying only to "accident or misfortune" or "heat of passion upon any sudden or sufficient provocation," as "excusable homicide" is defined in the statute (Sec. 3234, R.S. 1919), and would be more accurate if it limited the homicide by those words, instead of allowing the jury to take into consideration any accidental killing, but instead of narrowing the field for the jury's consideration, broadens it, and if error, it is error against the State, and one of which defendant cannot complain.
8. INSTRUCTION: To Disregard Argument. An instruction for the State telling the jury that "the argument of counsel is for the purpose of aiding you to reach a proper verdict by refreshing in your mind the evidence which has been given to you in this case, and by showing the application of the law thereto; but whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberations by the evidence as you understand it and remember it to be, and by the law as given by the court in these instructions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper" is not a direction to the jury to disregard the arguments of counsel, or a comment upon the evidence, but tells them to give attention to the argument and that it is to aid them in reaching their verdict, and is entirely proper.
Corpus Juris Cyc. References: Criminal Law, 17 C.J., Section 1564, p. 760, n. 12; Section 2240, p. 897, n. 85; Section 2464, p. 1030, n. 71; 17 C.J., Section 3704, p. 347, n. 77; Section 3729, p. 359, n. 64. Homicide, 29 C.J., Section 106, p. 1120, n. 99; 30 C.J., Section 250, p. 73, n. 85; p. 74, n. 91; Section 580, p. 330, n. 21; Section 654, p. 409, n. 34; Section 717, p. 450, n. 16. Indictments and informations, 31 C.J., Section 493, p. 858, n. 88.
Appeal from Monroe Circuit Court. — Hon. Charles T. Hays, Judge.
AFFIRMED.
Roy B. Meriwether and James P. Boyd for appellant.
(1) Instruction 3 was erroneous. There was no evidence upon which the court had a right to instruct on the question of a premeditated killing, or a killing of malice aforethought. The words "without just cause or provocation" should have been defined to the jury. In this instruction the court undertook to define manslaughter, and the definition as given was stated in these words, "manslaughter is the killing of a human being not herein declared to be murder or excusable or justifiable homicide." Sec. 3236. R.S. 1919. (2) There was no evidence upon which the court should have instructed the jury to find the killing was not excusable homicide, thereby requiring the jury to find a fact not in evidence. In this instruction the court used the expression justifiable or excusable homicide and not in the lawful defense of his person, as defined in other instructions, thus requiring the jury to find three distinctive things, and injecting in the disjunction excusable or justifiable homicide and then connecting by a conjunction "and not in the necessary defense of his person." In the same instruction the court defined excusable homicide as used in the instructions to mean the accidental killing of another. Secs. 3233, 3234, R.S. 1919. That the definition of excusable homicide was incorrect, under the evidence in this case, in that it wholly disregarded the second subdivision of the definition of excusable homicide, as given in Section 3234, supra. Likewise, there was no evidence in the case, not even one word of evidence, of accidental killing or of excusable homicide, as defined by the statute defining said excusable homicide. State v. Buerk, 199 Mo. 275; State v. Elsey, 201 Mo. 561. (3) This instruction was misleading, when it used the word disjunctive conjunction "or" and then connected the words "justifiable or excusable homicide" with the conjunction "and" in the expression "justifiable and not in the lawful defense of his person." (4) Instruction 4, given by the court on its own motion on the question of self-defense, is contradictory and in conflict with Instruction No. D-1, which was given for the defendant. Instruction 4 left out the most essential elements of self-defense, and that is, that the defendant acted in good faith upon the situation, as it appeared to him and under a real apprehension of danger to himself. Instruction 7 could have no greater effect than to limit the influence of the legitimate arguments of counsel. Such instructions have been condemned in many states. Tucker v. State, 167 Ala. 1; Gibson v. State, 26 Fla. 109; Man v. State, 124 Ga. 760; Peo. v. Ambach, 247 Ill. 451; State v. Butts, 107 Iowa. 673; Com. v. Maddox, 207 Mass. 152; State v. Price, 135 Minn. 159. (5) This cause should be reversed and remanded, because there is no substantial evidence to sustain the verdict. There is no evidence of any witness who saw the first shot fired but who testified to the fact that the deceased was striking at the defendant, or advancing upon him, that he struck him, that the defendant never attempted to strike him, but only attempted to ward off his blows or push him from him, the deceased being a young, strong and healthy man, and the defendant an old, weak and afflicted person. The verdict was clearly one of passion and prejudice of the jurors, and not a verdict in response to the evidence in the case.
North T. Gentry, Attorney-General, and J.D. Purteet, Special Assistant Attorney-General, for respondent.
(1) The evidence was sufficient to take the case to the jury. Where the evidence is conflicting, the weight thereof is for the jury to determine. This court is concerned with the question of whether there is substantial evidence in support of the verdict. Where such is the case, this court is precluded from disturbing the jury's verdict. State v. McKenzie, 177 Mo. 712; State v. Conley, 255 Mo. 185; State v. Sebastian, 215 Mo. 69; State v. Trent, 278 S.W. 678; State v. Williams, 274 S.W. 52; State v. Carey, 282 S.W. 25. (2) Instruction 3 was properly given. It is a correct declaration of the law of manslaughter. It is not erroneous in that there was no evidence to support it. State v. Gore, 292 Mo. 186; State v. Glenn, 262 S.W. 1032; State v. Hart, 274 S.W. 386. (3) Instruction 4 clearly stated the law of self-defense. It is not erroneous in that it conflicts with instruction numbered D-I. It is in perfect harmony therewith, as in substance it states everything which D-I declares. Different language, perhaps, is used, but that is no legal objection. State v. Tighe, 289 S.W. 830.
In December, 1926, in the Circuit Court of Monroe County, the defendant was tried on a charge of murder in the second degree. The jury found him guilty of manslaughter and assessed his punishment at five years in the penitentiary. Judgment was pronounced accordingly and the defendant appealed.
The defendant was charged with killing his nephew, Leslie Farrell, thirty-nine years of age, of medium height and weight and good health. The defendant was sixty-eight or sixty-nine years of age and in feeble health.
Defendant's brother, Tom Ed Farrell, seventy years of age, had two sons. Leslie, the deceased, and Gene. The defendant brought a partition suit against Tom Ed Farrell, and had feeling ensued between the defendant and his brother's family on account of it. On October 23, 1926, Tom Ed Farrell and his two sons met the defendant in Paris and had a conversation in which ill feeling was expressed. Leslie Farrell at that time asked the defendant why he was always nosing into everything; that he had done everything he could to turn the heirs against his father; always trying to make trouble. Among other things defendant said: "I aint able to fight none of you, nor your dad aint able to fight."
And then Tom Ed said: "If you want to fight I will fight you anywhere."
That was all that occurred that day.
On November 13, 1926, following, the defendant met Leslie Farrell in the town of Madison, where Leslie was delivering milk. He had a half-gallon bucket on his arm. Defendant shot him down in the street. Leslie died almost immediately.
I. The appellant claims that the evidence is insufficient to support a verdict of manslaughter; that the only Manslaughter: evidence in the case shows that the defendant shot Self-Defense. purely in self-defense.
Several witnesses saw the parties after the difficulty began. No one heard anything said between defendant and Leslie. A girl named Mae Meals was standing in a grocery store and saw Leslie Farrell first. "He backed into my view coming from the east going backwards, and George Farrell was coming towards him with a gun; George Farrell had a gun when I saw him." She further said that Leslie Farrell was going back west "with his hands up like this" (indicating).
She didn't want to see the trouble and turned her head, and heard three shots; two quite close together, and then a pause and a third one. She next saw Leslie Farrell lying on the walk, trying to raise his arm. She was asked how soon after she saw Leslie Farrell going back and George Farrell coming towards him with a gun did she hear the gun? She answered: "It seemed to me almost immediately."
On cross-examination she was asked if at the preliminary examination, she didn't make this answer to a question:
"Well, it just seemed to me I had not more than turned my head until I heard the gun." She answered that that was right; a lengthy cross-examination did not cause her to vary from those statements.
One Clara Bunnell was standing close to the Meals girl at the time. She saw Leslie Farrell "when he ran back in front of Baker's store with his hands up." She didn't see George Farrell, but she heard the shots. And she didn't see Leslie Farrell after she heard the shots. From her testimony the inference is reasonable that Leslie Farrell again passed out of her sight advancing upon the defendant. Miss Meals said to her. "There is a gun," and witness thought there was going to be a fight and she didn't want to see it.
A boy named James Robinson, ten years of age, was sworn. He was questioned closely about his ability to understand the nature of an oath. He said he did not, but he knew if he didn't tell the truth he would go to jail. He saw Leslie going up the street when George stopped him and they talked a little while. Witness didn't know what they said. He continued: "George, he drew out his pistol — and when he ran in to his coat and got the pistol, I don't know where it was at, ran in to his coat and got it, and then he shot him two first times, and then got his hand and kind of pushed on his other hand and then shot him a third time. I never seen any more of him."
Witness was then asked what Leslie Farrell was doing while George was shooting. He answered:
"When he saw that gun, when he pulled out that gun he threw up his hands like that (indicating), and backed off from him."
"Q. Did you see him do anything while he was shooting?" (Apparently "him" means Leslie, and "he" means George). A. When he shot the second time he fell to his knees."
One J.M. Forrest testified that he was in the drug business and standing in the entrance to his drug store when defendant came to him and asked him to call the sheriff, that he had shot a man that struck him. Witness said there was a red spot on defendant's check, not bleeding. He didn't notice any other marks or scratches.
Delbert Pierce testified that he saw George W. Farrell going east and Leslie Farrell going west, and they met, and in a few seconds the two were scuffling pushing and shoving, and then pretty soon he saw they were beginning to separate and he heard a shot fired. He said: "Though at first I seen George Farrell separate out as Leslie held up his hand like that, and he kind of made a step towards George Farrell and George Farrell shot either two or three times."
Charles Griffin was in Madison on that day and he heard the first shot fired and saw George Farrell and Leslie Farrell. "I just stepped out the door and stepped two steps west and just as I threw up my head the first shot fired and they were right close together, had hold of one another. Les with his right hand and George with left hand against him. One shot with a little pause and shot two more and reeled around and George went over with him to the walk. That is all there was to it."
Wesley Elsberry testified that he was going down the street and his attention was directed by the rattling of a tin bucket back on the sidewalk. This was Leslie's milk bucket. He looked up and saw a man kind of humped over. About that time he saw Leslie Farrell straighten up hat off, kind of turned and come back, and at that time there was a shot.
Gale Holohan testified that the first thing he saw "was Les Farrell hit at George Farrell and George pulled out a gun and shot Les." Witness could not say that Les made any further effort to strike George. On cross-examination witness testified that after the first two shots Les kept on coming and when Les struck at George, George threw up his hand to ward off the lick.
Joe Baker, deputy constable, testified that he took defendant's gun from him; that defendant had a swelled knot right above the cheek bone and a skinned place on his throat; the button of his shirt collar had been pulled off; it looked fresh at the time.
The defendant introduced evidence to show that Leslie Farrell was trying to get hold of George Farrell's throat when George took a step backward and shot; that the defendant was an old man and in weakened condition from ill health, and the deceased was a young man in robust health; that the deceased violently attacked the defendant in the street and he shot in self-defense.
The evidence illustrates the conflicting viewpoints with which different witnesses see the same incident. According to the testimony introduced by the State it was difficult to tell who was the aggressor. The defendant was armed, evidently expecting trouble. The deceased had no weapon of any kind. It was the duty of the jury to take into consideration all of the evidence. Where the evidence of the State conflicted on minor points they could select from that conflict such parts as seemed to them most reasonable. According to the evidence of the first three witnesses introduced by the State, they could reasonably infer that no act of aggression threatened great bodily harm to the defendant before he began to fire. That evidence was sufficient to warrant an information charging murder in the second degree. The general rule is that murder in the second degree arises from intentional killing with a deadly weapon in the absence of proof tending to show murder in the first degree, or to show facts which would reduce the killing to manslaughter or excusable or justifiable homicide. [State v. Snow, 293 Mo. l.c. 149; State v. Minor, 193 Mo. 597; State v. Yates, 301 Mo. l.c. 371.]
According to the evidence of other witnesses, there was a scuffle between the two. Leslie Farrell struck at George Farrell. The witness did not say that the blow landed. Other witnesses stated that the defendant had a bruise on his check; his shirt collar button was off and there were scratches on his throat, according to some of the evidence. Les advanced upon George after the first shot was fired. The jury might reasonably infer from all these circumstances that Leslie seized George by the collar and perhaps struck him after he was fatally shot.
A defendant may be convicted of manslaughter where he is charged with murder, if the facts warrant it. [State v. Ludwig, 70 Mo. 412.] The defendant had a right of self-defense, but he had no right to use any more force to protect himself than was necessary. A blow of the fist or a common assault will not ordinarily justify a killing in self-defense. There must be well-founded apprehension of great bodily harm. [State v. Caldwell, 231 S.W. 613; 30 C.J. 73-74.] The use of a deadly weapon is justified only where it is necessary in defense of one's life to prevent great bodily harm. It was a question for the jury to say whether under the circumstances the defendant was justified in believing he would suffer great bodily harm at the hands of his nephew so as to justify him in shooting. The defendant must have known that the deceased was not armed, and that the assault of the deceased, if he made one, was not of a character to threaten the defendant's life or inflict great harm upon him, but sufficient to arouse a sudden heat of passion which caused defendant to kill in a manner which may be defined as manslaughter.
II. The appellant objects to Instruction No. 3 on manslaughter, because it authorized a verdict of guilty if the defendant "intentionally shot and killed the said Leslie Farrell without malice aforethought as these terms are hereinbefore explained, and under such circumstances that it is not justifiable or excusable homicide, and not in the lawful defense of his person as defined in other instructions."
The objection is that justifiable homicide is, in lawful defense of the defendant's person, and therefore it was confusing to the jury and placed an unnecessary burden upon the defendant. But the same instruction ends with this definition:
"Justifiable homicide as used in the instructions means the killing of another in lawful defense of one's person as more fully explained in other instructions given."
Thus, while justifiable homicide and the lawful defense of his person are connected by the conjunction "and" in the main part of the instruction as if they were two separate conditions, the concluding definition makes them one and the same thing, and a jury could not misunderstand it.
It was further objected that the same instruction also includes the definition of excusable homicide: "Excusable homicide, as used in these instructions, means accidental killing of another."
Section 3234, Revised Statutes 1919, defines excusable homicide as one committed by accident or misfortune in either of the following cases: "First. In lawfully correcting a child, or apprentice, or servant, or in doing any other lawful act by lawful means, and with usual and ordinary caution and without unlawful intent; or, second, in heat of passion, upon any sudden or sufficient provocation, or upon sudden combat, without any undue advantage being taken, or without any dangerous weapon being used, and not done in a cruel or unusual manner."
The definition in the instruction must be considered with reference to the facts of the case. The facts exclude any sudden combat without a dangerous weapon, and exclude the correction of a child, servant or apprentice, and the only part of the statute which could apply would be the "accident or misfortune . . . in heat of passion upon a sudden or sufficient provocation." The definition would have been more accurate if it had limited the homicide in that way, but instead of that it allows the jury to take into consideration any accidental killing. "Accident" and "misfortune" evidently mean one and the same thing; that is, a killing without intention to kill. And the definition of excusable homicide in the instruction, instead of narrowing the field for the jury's consideration, broadens it, and the error, if any, was against the State, of which the defendant cannot complain.
It is further contended that Instruction 4 did not fully state the law of self-defense, under Section 3233, Revised Statutes 1919, and that it is in conflict with Instruction D-1 given for defendants. Each of these instructions is of considerable length, and it is unnecessary to set them out. Instruction 4 quite fully states the law of self-defense, and Instruction D-1, given for the defendant, does not conflict with it, but goes rather more particularly into some details of the principle. The jury were properly and fully instructed on the law of self-defense.
Objection was made to Instruction 7, which is as follows:
"7. The argument of counsel is for the purpose of aiding you to reach a proper verdict in the cause by refreshing in your mind the evidence which has been given to you in this cause, and by showing the application of the law thereto; but whatever counsel may say, you will bear in mind that it is your duty to be governed in your deliberation by the evidence as you understand it and remember it to be, and by the law as given by the court in these instructions, and render such verdict as in your conscience and reason and candid judgment seems to be just and proper."
The objection of appellant to it is that it would cause the jury to disregard the arguments of counsel and that it is a comment upon the evidence. It is not a comment upon the evidence at all. Instead of directing the jury to disregard the argument of counsel, it directs them to pay attention to that argument; tells them that the purpose of the argument is to aid them in reaching a verdict. The instruction was entirely proper.
The case was well tried, and we are unable to find any reversible error in the record.
The judgment accordingly is affirmed. All concur.