State v. Smith , 114 Mo. 406 ( 1893 )

Sheuwood, J.

I. The instructions given at the instance of the state for the defendant and by the court of its own motion presented the issues involved very fairly to the jury, and left nothing to be desired; so that it is unnecessary to quote the instructions refused the defendant. These instructions covered the two prominent issues the facts in the evidence presented, to-wit, first, was the homicide murder in the first degree, or second, was it justifiable as being in self-defense. The testimony on the part of the state shows a clear case of the deliberate and premeditated shooting of the defendant, an unarmed man, who was not only defenseless, but standing still and making no attack on the defendant; while the testimony of the defendant shows a clear case of self-defense. These being the only issues raised by the facts in evidence, the trial court properly refused to instruct on a lower grade of homicide than murder in the first degree. State v. Sneed, 91 Mo. 559.

If the testimony of the defendant had shown that he shot by reason of hot blood, perhaps a different question might b.e presented, one not necessary to be now considered. Moreover, the testimony of Bert Long conspicuously shows that the shooting was not done in the heat of passion, but with deliberation; for he says that: When George said “give me the gun,” etc., Smith said, “if he gets the gun I will shoot him.”

The elements of murder in the first degree were properly defined in the instructions given in accordance with well established precedents in this court, and the instructions on the other issue were equally as fair and favorable to the defendant and equally comformable to well settled precedents. These instructions recognize the fundamental doctrine, one of universal recognition, that “self defense is an affirmative, positive, intentional act.” State v. Gilmore, 95 Mo. 564; State v. Tabor, 95 Mo. 593, et seq.

It is true that this court in State v. Stephens, 96 Mo. 637, commonly known as the “target gwn” case, announced a very different doctrine, to-wit: That if the •defendant’s gun, without any design on his part, went off accidentally and killed the deceased, and the defendant was under no apprehension of danger, still this .should not deprive him of an instruction on the ground of self-defense; and because the trial court in that case instructed the jury that there was “no evidence that will warrant an acquittal on the ground of self defense,” and refused to admit evidence of previous threats, the judgment was reversed. And doubtless it was that case which emboldened the defendant here to ask one of the refused instructions to the effect, that if the defendant “fired the shot at rcmdom,” “that then the said jury shall find that the said shot was fired in self-defense.” But Stephens’ case is not law; it stands alone, and is at war with first principles and fundamental ideas and with everything hitherto written on the subject, so that we are constrained to overrule it; to approve it would be to recognize the anomalous doctrine of accidental self-defense.

II. It is insisted in the motion for a new trial that perjury was committed by Jim Cameron in regard to the whereabouts of the gun aud of his own whereabouts when the shooting occurred. But he is supported in his testimony as to the gun being absent by Jackson, and he is supported in his statement as to the scuffle for the gun being over for some time before the shooting took place, both by the testimony of Jackson, John Knauer and Frank Hogan, and the only direct testimony to the contrary is that of the defendant himself. The main point in controversy, as before stated, was whether the playful scuffle for the gun was over before the defendant fired the fatal shot, and all the direct testimony on the subject is to the effect that it was, except that of the defendant.

Besides, the eighth instruction given at the instance of the state fully apprised the jury of their duty in case they should believe from the evidence that any witness had sworn falsely, etc. It belonged exclusively to the triers of the facts to determine this for themselves, and where, as here, the verdict of the jury on the point in hand is abundantly sustained by the testimony of at least three witnesses, to-wit, Jackson, Hogan and Knauer, we are not disposed to interfere with the conclusions reached by the jury, especially so as that conclusion received the sanction of the trial judge when overruling the motion for a new trial. And even if the testimony of Jim Cameron were altogether rejected it would not change the result; and the same may be said of Jackson’s testimony.

III. Regarding the eleventh and twelfth grounds of the motion for a new trial, it suffices to say that no objection was made or exceptions saved as to the method of summoning and impaneling the jury, and it is too late to do this for the first time in the motion for a new trial. State v. Waters, 62 Mo. 197; State v. Klinger, 46 Mo. 224; State v. Gilmore, 95 Mo. 554.

IY. The fourteenth and fifteenth grounds for a new trial, to-wit, that the court threatened to exclude the testimony of defendant from the jury when a certain question was asked him, and the oral instruction given by the court to the jury as to the manner the jury might conduct themselves, etc., even if erroneous, cannot be noticed, because no exception was saved thereto, nor is there anything of the sort preserved in the bill of exceptions, and the statement of such grounds in the motion does not prove itself. The same line of remark applies to the eighteenth, nineteenth, twentieth and twenty-first assignments for a new trial. State v. Musick, 101 Mo. 260; State v. McDaniel, 94 Mo. 301.

Y. The fifteenth ground for a new trial recites that the defendant was allowed to remain in shackles after the trial had begun; but this statement cannot be supported by ex parte affidavits. The only way in which . matters occurring in the presence of the coivrt can be preserved is by incorporating them in the bill of exceptions. State v. Hayes, 81 Mo. 574; State v. Musick, supra.

VI. The second ground of the motion for a new trial recites that the court erred in rejecting competent evidence offered by the defendant. Among the exceptions saved on this score was one where the defendant offered to prove by his own testimony that in his flight from the saloon he met some one and offered to surrender himself; but on objection by the state this question was excluded. In this exclusion there was no error. Even if the defendant had actually surrendered himself to an officer he could introduce no evidence of such self-serving acts. State v. Musick, supra.

Another exception saved under this head was in relation to what Jim Cameron had said to James Clark about the missing cartridge when he returned the gun he had borrowed. As no ground had been laid for the impeachment of Cameron in regard to this matter,'what Cameron said about it was mere hearsay, and properly rejected.

Still another exception under this head is found in the refusal of the court over the objection of the state to allow Jim Cameron to answer on cross-examination this question: “Then the shot was fired before you got to scuffling?” Of this question and its refusal it is quite enough to say that the same question in substance was without objection afterwards asked and answered by the witness.

Yet another exception under this head was taken because the coui’t on the re-direct examination of the defendant by his counsel refused him permission to answer the question: “When was the first time you entertained any idea that they intended to do you any serious harm?” Of this question, too, it may be said, that in substance it had been asked and answered before, and the whole matter of the difficulty fully laid "before the jury by the defendant in his testimony before them.

VII. The third assignment for a new trial is the admission of illegal and irrelevant evidence offered by the state. One of the points made under this head was that contained in the twenty-fourth assignment, to-wit, that the state was permitted “to prove that the defendant had trouble the same day of the alleged shooting with a certain witness named Walker, and drew a revolver on him.” Of this it may be said that the witness testified to this matter of his own head and without any objection being made. What the defendant’s counsel did object and except to was the question whether the.defendant had a pistol with him when he returned from the hollow. But there was nothing improper in this question, and besides it was one of the conceded facts in the case, and no reason was stated for the objection. The same may be said of the question asked Jackson by the state as to who was having the fuss, where no reason for the objection was given. State v. Brannum, 95 Mo. 19; State v. Gilmore, 95 Mo. 554. But in any event the question.was a proper one, and was necessary to develop the case before the jury.

VIII. The twenty-third assignment which the motion for a new trial contains is in regard to newly discovered evidence. Of this ground it is only neces- • sary to say that as to the testimony of Mrs. Knauer, it relates to the whereabouts of the shotgun on the Sunday afternoon, and tends to contradict or to impeach Jim Cameron and has been sufficiently touched upon already. A similar remark applies to an absent witness upon whom reliance is placed to contradict or impeach Jim Cameron in regard to the alleged admis- . sions made by the latter to such witness. Sufficient has been said under this assignment to show that it .falls within the rule so often laid down by this court in regard to newly discovered evidence. State v. Musick, supra, 274, and cases cited.

After a patient investigation of the record in this cause, discovering no reversible error therein, it only remains to say that we affirm the judgment and direct the sentence pronounced to be executed. Revised Statutes, 1889, sec. 4298; State v. Pagels, 92 Mo. loc. cit. 317.

All concur.