Opinion
No. 41766.
June 13, 1950.
A conviction of murder in the second degree is reversed and remanded because of failure to give an instruction on the defense of habitation. A manslaughter instruction was not required.
1. CRIMINAL LAW: Homicide: Murder in Second Degree: Submissible Case. There was a submissible case of murder in the second degree based on defendant's admission that he shot the deceased and other corroborating evidence.
2. CRIMINAL LAW: Homicide: Manslaughter Instruction Not Required. The evidence does not establish an actual battery upon defendant's person, and so does not require an instruction on manslaughter.
3. CRIMINAL LAW: Homicide: Murder in Second Degree: Defense of Habitation Instruction Required. Since there was evidence that defendant shot the deceased as the latter was attempting to break into defendant's home, failure to give an instruction on the defense of habitation was reversible error.
Appeal from Mississippi Circuit Court; Hon. R.B. Oliver, III, Judge.
REVERSED AND REMANDED.
Joslyn Joslyn for appellant.
J.E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent.
(1) The jury was properly instructed on the issue of self-defense advanced by the appellant. State v. Colbert, 226 S.W.2d 686. (2) The refusal of the court to give an instruction on manslaughter was proper under the evidence. State v. Ferguson, 182 S.W.2d 38, 353 Mo. 46; State v. Edwards, 226 S.W.2d 592.
Eugene Kizer, charged with the murder, in the first degree, of Bob Layne was found guilty of murder in the second degree and his punishment assessed at ten years' imprisonment. §§ 4376, 4377, R.S. 1939, Mo. R.S.A. Defendant appealed. He has filed no brief but his motion for new trial alleged error in failing to instruct on manslaughter and on defense of habitation.
The State made a submissible case. There was evidence that Bob Layne was attempting to borrow $5.00 about 5:00 p.m., or later, on October 30, 1948, at a store in or near Dorena, Mississippi county, Missouri, and stated he would try to secure the $5.00 from defendant. Later that evening he [691] was found suffering from gun shot wounds in the right arm, left chest, right hip, and abdomen. He had no weapons about him. His death, on November 1, 1948, resulted from the wounds. Defendant admitted shooting Layne with a .22 caliber single shot rifle.
Defendant testified that he told Layne at the store he did not have $5.00. Defendant then went to a show. On his way home about 9:30 p.m. and while about 150 yards from his home, he heard a noise, like someone beating on the side of a building, and then he heard his wife hollering. He started running towards his home. He testified that the man was pounding at the back door with an axe; that the gate slammed when he, defendant, entered the yard and the man stopped pounding; that the man then "broke at me" with an axe; that it was Bob Layne; that defendant ran into his house; that Layne said: "Goddamn you, I'll kill you"; that defendant said: "Go on, Bob, I ain't done nothing; I don't want no trouble; you let me alone"; that Layne "broke the door in and I shot." Defendant further testified that Layne then went around the house and when Layne started to enter the house through the back door, he shot Layne again.
There was also testimony, adduced by the State and corroborated by defendant, that defendant had stated: "Yes, I shot Bob Layne. He tried to break in my house."
The evidence does not establish an actual battery upon defendant's person and, hence, is insufficient to require an instruction on manslaughter. State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38, 40[2-4]; State v. Bongard, 330 Mo. 805, 813(II), 51 S.W.2d 84, 88(II), citing and reviewing cases; State v. Porter, 357 Mo. 405, 208 S.W.2d 240, 244.
However, the evidence warranting an instruction on the defense of habitation is stronger in the instant case than in State v. Shiles (Mo.), 188 S.W.2d 7, wherein it was held that the failure to give an instruction thereon constituted reversible error. The second point of defendant's motion for new trial is sustained. See also State v. Crowley, 345 Mo. 1177, 1183, 139 S.W.2d 473, 476; State v. Wright, 352 Mo. 66, 175 S.W.2d 866, 872[7, 10]; 41 C.J.S. 191, § 386.
Accordingly, the judgment is reversed and the cause is remanded for a new trial. Westhucs and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.