Opinion
No. 42867.
September 8, 1952.
APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY, L. H. SCHULT, J.,
Charles H. Baker, Malden, John H. Bradley, Kennett, for appellant.
J.E. Taylor, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.
Defendant, James D. Forsythe, was charged in the Circuit Court of New Madrid County with the offense of murder in the first degree in having shot and killed Mrs. C. S. Smith. He was convicted of murder in the second degree, and sentenced in accordance with the verdict to 18 years' imprisonment in the penitentiary, and he appeals.
The killing occurred in the late afternoon of September 20, 1950, at the farm home of the deceased and her husband 5 miles southeast of Malden. Deceased was the mother of defendant's former wife, Juanita, from whom he had then recently been divorced. During the three months intervening between the date of the divorce and the homicide, there had been negotiations between the parties looking toward a reconciliation and their remarriage. Under the state's version, defendant went to the deceased's home on the occasion in question for the purpose of taking Juanita away with him, and this by force, if necessary, and under threats to kill. He drove up into the driveway and finding Juanita's eight-year old brother, Larry, in the yard, sent him into the house after her. Deceased demurred, telling Juanita she was "not to go out there." This was overheard by defendant, who told deceased that Juanita was coming out, or he would come in and get her. Deceased then locked the front door, and told Juanita to run out and get Mr. Brown (their farm hand). Juanita left by the back door, and went to a tool shed located some 60 to 75 feet south of the house. Meanwhile defendant got out of his car with a gun in his hand, came to the house, kicked open the front door, and hit deceased on the side of the head with a pistol, went on through the house, and out the back door to the tool shed. Brown, responding to the "screaming and hollering" of Juanita and her mother, met defendant, gun in hand, near the tool shed. Juanita came out of the tool shed, but at all times Brown was between her and defendant. Mrs. Smith either came from the house with a pistol in her hand, or else returned to the house and got it after ordering defendant off the premises — the state's evidence is conflicting in this regard. Defendant there threatening to kill Juanita, her mother and Brown, continued to argue and insist he was going to take Juanita with him, and the "mother kept saying he wasn't, and she reached up to her head, and said, `Charlie [meaning her husband] will make you pay for this,' and he said, `Yes, I know, but I will pay for a lot more than that.'" Whereupon, he shot deceased twice, one taking effect above the left hip and the other in the left thigh with fatal results.
Admitting the killing, defendant sought to justify it on the ground of self-defense. The controlling question on this appeal is whether there was evidence to support the instruction given on that subject. The evidence relied on by defendant as warranting submission of that issue came from his own lips, so taking up the thread of his story as of the time he was down at the tool shed, his version was as follows: "By that time Mrs. Smith was in the back yard and didn't have the gun with her at first, and Juanita and I were talking and couldn't get to talk for Mrs. Smith yelling at us. And about this time Mrs. Smith said, "There is a gun in the house and I know how to use it.' And she left and went in the house, and came back out * * * and said repeatedly, `This gun is loaded, and I know how to use it.' And she came out where we were, and louder with her talk all the time, and I was afraid she would get mad enough to shoot me, and I started going back up the fence towards the car, and I got about half way between the tool shed and the car, about 45 feet from the tool house, and she was still yelling at me, and getting red in the face, and made a step or two towards the fence and made like she was going to shoot at me, and before she did that she said, `You are going to pay for hitting me on the head,' and made an attempt like she was going to shoot at me, and I was about 6 feet from her and I made or an attempt to shoot her gun in her hand, and I knew I didn't have time to make or to duck but too close to her to duck, and she was going to shoot, and I shot three times trying to hit her gun or lower part of her legs and disarm her."
The instruction given by the court on the subject of self-defense (No. 6) told the jury, in part: "But before you acquit on the ground of self-defense you ought to be satisfied that defendant's cause of fear for his life or personal safety was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in this case, you cannot acquit the defendant on the ground of self-defense, even though you may believe the defendant thought he was in danger." (Emphasis supplied.)
It will be seen that this particular phraseology was before the court in State v. Davis, 342 Mo. 594, 598, 116 S.W.2d 110, 112, where the word "established," in the connection here used, was held to be so misleading as to constitute reversible error. Conceding that the form of the instruction is erroneous, the state contends that it constitutes no ground for reversal "since there was no element of self-defense in the case." This contention is not developed at any length (nor has defendant given us the benefit of his views thereon by way of reply brief), but to sustain it would practically require us to hold that because defendant had struck deceased at the inception of the altercation at the house, he did not thereafter have the right of self-defense regardless of the later developments outlined above, and this we are unwilling to do. Under defendant's testimony he had, before the shooting, abandoned the difficulty, and was going to leave the premises, and in pursuance of that purpose, had reached a point halfway between the tool shed and his car when deceased came upon the scene, renewed the difficulty, and, brandishing a pistol, threatened to shoot him, and "made like" she was going to do so. Enough has been stated to demonstrate that the issue should have been submitted, and as the instruction given thereon was prejudicially erroneous for the reasons stated in the Davis case, supra, the conviction cannot stand.
Defendant also complains that the court should have instructed on the right of imperfect self-defense as a part of the law of the case. His right to a proper instruction on the perfect defense (that which may extend to the taking of the aggressor's life) has just been upheld. He seems to base his present claim on precisely the same facts and circumstances as those whereon the ruling just mentioned was grounded, but obviously this does not follow. In any event, the court gave an instruction on manslaughter, which is the offense even where the right of imperfect self-defense is successfully interposed. As stated in State v. Ferguson, 353 Mo. 46, 52, 182 S.W.2d 38, 41: "It is doubtful that this doctrine with the paradoxical name, `imperfect self-defense,' means any more in the law of homicide than that if there is evidence showing or from which the jury could find a lack of malice on the part of the accused he is entitled to an instruction on manslaughter."
Instruction No. 8 is assailed as improperly limiting the jury's consideration of communicated threats to "explaining the conduct of the defendant prior to the shooting" (to use the challenged language), instead of "at the time of the shooting." This point was not preserved by the motion for a new trial, but in view of the disposition to be made of the case, and to obviate the possibility of a recurrence of the question on new trial, we take occasion to say that, in the respect mentioned, the language of the instruction should be made to conform to that suggested by defendant, and for which there is precedent. State v. Lloyd, Mo.Sup., 263 S.W. 212, 215.
The other two assignments have to do with isolated remarks of the court in ruling objections, and the question of whether a certain answer was admissible because of its nature as a conclusion. As these questions are not likely to recur upon another trial, they need not be ruled.
Because of the error in instruction No. 6 the judgment is reversed, and the cause remanded.
All concur.