text:
    THE STATE v. CHARLES HEATH, Appellant.
    Division Two,
    November 14, 1911.
    1. MURDER: Self-defense: Withdrawal. One who attacks another, manifestly intending by violence to take this other’s life or do him great bodily harm, cannot exercise the right of self-defense unless and until he has -first withdrawn from combat. A with- ' drawal is not a mere retreat; such withdrawal must be in good faith, and the fact of change of purpose must be known to the other person. There is no abandonment where the fight is continuous.
    2. -: -: -: Instructions. Where there is no evidence tending to show a withdrawal from a combat feloniously begun, an instruction is not erroneous which denies to defendant the right to kill in self-defense. Nor, under the same circumstances, can the defendant complain of the form of an instruction defining his right of withdrawal, for that instruction was too favorable to him.
    3. INSTRUCTIONS: Manslaughter in Fourth Degree. The court gave an instruction fully covering the question of manslaughter in the fourth degree, and telling the jury that defendant’s “passion” must have been aroused by deceased’s having assaulted or struck defendant with a knife or stone. It is held, therefore, that, since the given instruction is correct, it was not error to refuse an instruction asked by defendant, which left it to the jury to say what fe a reasonable provocation.

      4. -: Threats: Who Must Show Error. Counsel make objection to an instruction set out in the opinion, but no authority is shown against it. The instruction seems to be a clear statement of the law as applied to the evidence, and he who alleges error must show it, which has not been done.
    5. -: Statements of Counsel. It was not error to instruct the jury that statements of counsel are not evidence and should not be considered by the jury in arriving at their verdict. Such instruction did not nullify the testimony in the ease of one of defendant’s counsel, nor did it destroy the effect of the argument to the jury by defendant’s counsel.
    6. -: Sympathy, Prejudice or Bias. It was not error upon the part of the trial court to refuse an instruction asked by defendant in this case which would have told the jury that they should not permit sympathy, prejudice or bias to influence them. Such an instruction may be helpful in some cases, but the defendant cannot complain of its refusal in this case.
    7. EVIDENCE: Trial for Murder: Collateral Issue. The defendant offered a witness to prove in detail that, before the killing, in the absence of defendant and out of his hearing, deceased at the school house punished defendant’s daughter, called her a liar, tore her clothes, etc. It is held that such evidence in detail was rightly excluded by the trail court. To admit it would be to enter into the trial of a collateral issue.
    8. -: Opinion: Cross-examination. The witness Shira testified that he placed himself in the position “that Susie Thomas testified she occupied,” and that from that point the scene of the combat was not visible. This testimony was objected to as “his opinion of what the testimony of Susie Thomas was.” The objection was overruled, and, it is held, rightly so, for whatever error there may have been in that mode of examination was cured by the fact that the witness was fully^cross-examined as to the point of his observation.
    9. INSTRUCTIONS: Evidence: Read from Record and Deposition. The defendant asked, and the trail court refused, an instruction which would have told the jury that testimony read to them “from the record and deposition ... is competent evidence” and to be considered'“the same as if those witnesses were present and examined here in open court at this trial, as other witnesses under oath.” It is held that such refusal was correct. The jury must be presumed to know that such things are testimony; and for the jury to consider that testimony the same as if the witnesses were present was an impossibility. The instruction was unnecessary,-to say the least of it.

      Appeal from Lawrence Circuit Court. — Hon. F. C. Johnston, Judge.
    Affirmed.

      M. E. Benton, Felix Lindsay, J. A. Sturgis, W. B. Skinner and George Hubbert for appellant.
    (1) No futile attempt to withdraw, or strenuous endeavor to recede and decline further struggle, could avail defendant anything whatever under the terms of instruction 10. It is an undeniable fact, that the heat of conflict was such that notwithstanding any manifest attempt of defendant to withdraw and flee, no one can say that there was an appreciable cessation of the difficulty in any bystander’s view-no moment of distinct withdrawal in fact as defendant receded and his antagonist advanced with knife or pursued with stone. The mischief at this point was also intensified by instruction 12, which carried to the jury at least the implication that, after all, there was no self-defense or amelioration in the ease for defendant-after he once appeared to have entered into the conflict — no justification or excuse or mitigation for him at any later point of time in the difficulty — nothing could be predicated upon any desired, announced, endeavored and attempted, but abortive, withdrawal or flight from the field and fact of combat. Recurring to instruction 12, in juxtaposition with No. 10, there is presented a forceful and misleading inconsistency with the settled law, which is confusing and misleading, in that it declares, “if defendant provoked the difficulty or began the quarrel, with the purpose of taking advantage of the deceased and of taking his life, or doing him some great bodily harm, then there is no self-defense in the case, etc. . . . and defendant is guilty of murder in the first degree, and the jury should so find.” That is not the law of this case. If other instructions of the series be deemed correct in form and substance, as given, they could not be regarded as corrective of Nó. 12. The verdict herein very evidently follows instruction 12. (2) Instruction 9 as given does not permit assessment of punishment as for manslaughter upon any other ground than as therein mentioned, viz.: “While the defendant was in a violent passion •suddenly aroused by reason of Mosier having assaulted or struck him with a knife or stone.” This does not exhaust the category of provocations sufficient to reduce intentional killing to manslaughter. Other reasonable provocation than knife-cut or stone-bruise may arouse the necessary heat of passion, even short of “violent” passion, to put a culprit within the mercy of the statute. Instruction “I” should have been given, defining the “sudden heat of passion on reasonable provocation” properly entering into manslaughter as an element. Partlow’s Case, 90 Mo. 608; Cable’s Case, 117 Mo. 380.

      ■ Elliott W. Major, Attorney-General, and Charles G. Bevelle, Assistant Attorney-General, for the State.
    (1) There was no error in permitting Charles Shira, in rebuttal, to describe the location and general surroundings of the place from which Susie Thomas, witness for appellant, had testified that she had witnessed the difficulty, nor was it error to permit him to state that from said position it was impossible, on account of certain obstructions, to see the place where the difficulty occurred. • State v. Long, 209 Mo. 382. (2) The court gave instruction 9. The authorities on this subject are reviewed .at length in State v. Gartrell, 171 Mo. 516, and State v. Sharp, 233 Mo. 269. There is not in all this record the slightest evidence tending to prove, in the remotest degree, any assault made upon appellant by Mosier, except with knife or stone. The rule that instructions must be predicated upon the facts developed at the trial applies to criminal cases. ■ State v. Hargraves, 188 Mo. 337; State v. Callaway, 154 Mo. 91. Whenever the words “violent passion” are used in an instruction, it is proper to define them. State v. Skaggs, 159 Mo. 581; State v. Strong, 153 Mo. 555. The purpose, however, of defining these terms is not to benefit the accused, but to limit and restrict to a lawful provocation the one which reduces the killing to manslaughter. State v. Sharp, supra; State v. Rose, 142 Mo. 429; State v. Kinder, 184 Mo. 297. Appellant’s instruction lettered “I,” on manslaughter, was properly refused, because it authorizes a verdict on manslaughter, “if the jury finds and believes that the defendant in a sudden heat of passion, on a reasonable provocation, intentionally shot and killed deceased without malice, etc.” No definition of “heat of passion,” or “reasonable provocation” is contained in this instruction, and none was offered in connection therewith. It was, for this reason, properly refused. State v. Reed, 154 Mo. 129; State v. Sharp, supra. (3) Instruction 12 is in the exact words of the instruction recommended by this court in State v. Gilmore, 95 Mo. 563, and is in keeping with the doctrine, uniformly announced and applied by this court. State v. Partlow, 90 Mo. 614; State v. Dunn, 221 Mo. 542; State v. Darling, 202 Mo. 171; State v. Gordon, 191 Mo. 127, 128; State v. Bailey, 190 Mo. 286, 291; State v. McDaniel, 94 Mo. 309; State v. Rose, 92 Mo. 207; State v. Gieseke, 209 Mo. 334, .345; State v. Harrell, 97 Mo. 109. It is also a copy of the instruction given on the first trial of this cause, and silently approved on the former- appeal. The soundness of instruction 10 is shown by what is said in this case on the former appeal when- the court was considering the instruction then given on this subject. State v. Heath, 221 Mo. 588; State v. Patterson, 159 Mo. 562, and cases cited under preceding paragraph. Instructions 10 and 12 must be read together. State v. MeKinsey, 177 Mo. 714; State v. Copeman, 186 Mo. 108; State v. Sharp, 183 Mo. 715. These two instructions, when read together, are a rescript of instruction 12, given in the case of State v. Sebastian, 215 Mo. 76.
   ROY, C.

This is a prosecution for murder. The defendant was convicted in August, 1907, in the Lawrence Circuit Court, of murder in the second degree, and 'on appeal the judgment was reversed and remanded by this court in an opinion by Judge Fox, reported in 221 Mo. 565. On a retrial in December, 1909, the defendant was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life.

A full and clear statement of the facts appearing on the first trial appears in connection with the opinion on the former appeal, and counsel for defendant here concede that it is a statement of the facts on the second trial, except in a few particulars which occurred at the second trial.

There was evidence of several new witnesses tending to disprove the alleged threats of the defendant. Dr. Smiley testified that about the middle or last of February, 1907, he examined defendant and found a clean, smooth cut three-fourths of an inch long in the top of his right ear, clear through the ear, and a bruise behind the ear below the cut, the skin being off.

The defendant offered to prove by Martha Me-Grew that on February 21, before the killing, in the absence of defendant, and out of his hearing, deceased at the school house punished defendant’s daughter, called her a liar; that he tore her clothes, grabbed her by the sleeve and tore her sleeve nearly out; jerked her down on one of the seats and on the stove and whipped her. To which testimony the State objected as follows: “The State objects to the witness testifying in detail to anything that was said, done or happened between the‘deceased and Lou Heath, defendant’s daughter, in the absence of defendant, because any punishment or offer to punish defendant’s daughter in his absence and out of his hearing would constitute no justification, defense or excuse for defendant assaulting or killing deceased. This is a matter for the defendant to have redress in the courts of law or through the school board, as provided by law. Further the State offers no objection to .the witness stating anything she may have told defendant, if she told him anything, in regard to the abuse or punishment by deceased of his daughter, and the State makes no objection to her stating the fact that he corrected or punished defendant’s daughter, but the State does object to her going into detail and stating what occurred for the reasons above mentioned.”

The court sustained the objection on the ground that evidence as to the details of the whipping was not competent, and defendant excepted, but the court allowed testimony to the fact that deceased whipped defendant’s daughter in violation of his agreement with the board.

Objection was made to remarks of counsel for the State in their argument to the jury, but the attention of the trial court was not called to that point in the motion for a new trial.

The deposition of Dr. Williams as to the nature of the wound on the ear of defendant was read to .the jury, and also the evidence of Clifford Noel, an eyewitness of the difficulty, as contained in the bill of exceptions of the former trial.

The defendant testified in substance, among other things, that he first accosted the deceased. They got into a quarrel and called -each other a liar. Mosier threatened to cut defendant into shoe strings and advanced on defendant with a knife. Defendant took a few steps, told Mosier to stop, and grabbed up two rocks. They were about ten feet apart. Mosier picked up two rocks. Defendant threw a rock at Mosier, and Mosier threw one at defendant, who was then on the east side of Crispin’s gate,, while Mosier was on the west .side. Defendant threw another rock at Mosier, who dodged and threw another at defendant, who dodged by turning and was struck on the top or back of the head. Mosier then made at defendant with a knife, who dodged back and ran three or four steps, then turned to Mosier, who, as defendant testified, kept so close to defendant that defendant had no chance to get another rock. Defendant told Mosier to. stop, and took five or six steps backward and told Mosier to “hold up there.” Defendant was moving east and says that he backed up against a wire fence. (The road in which they were at the time ran east and west.) Mosier kept coming with the knife and defendant took the pistol from his pocket and shot Mosier.

. On cross-examination defendant testified that the fight continued right along from the beginning until Mosier was shot, both busy all the time, Mosier fighting and Heath defending.

Defendant read in evidence the testimony of Susie Thomas given at the preliroinary examination before Charles Shira, a justice of the peace. She stated that she stood in six or eight feet of the corner of the barn and saw Mosier with his hand up and defendant backing.

Charles Shira, the justice, was placed on the stand by 'the State and the following question asked him: “You may state if you went and put yourself in the position there that Susie Thomas testified she occupied there at the northeast corner of Ferry’s barn, from which she viewed the scene of this difficulty.”

It was objected to as follows: “We renew our objection. It is not competent to give an opinion and judgment of the result of this examination, because it is Ms opimon of what the. testimony of Susie Thomas was.” WMeh objection was overruled and exception taken.

The witness then stated that he went to the point where she stated about eight or ten feet from the northeast corner of the barn, and that on account of an old building, since fallen down, it was impossible to see across where the difficulty was. He was fully cross-examined as to the location of the various points in controversy.

Among the mstruetions given by the court of its own motion were the following:

“9. If you believe and find from the evidence beyond a reasonable doubt that the defendant, Charles Heath, at the County of McDonald and State of Missouri, on or about the 22d day of February, 1907,. intentionally shot and Mlled Clarence Mosier with a pistol without malice and without premeditation as these terms are explained in these instructions and not in the necessary defense of Ms person as in these instructions explained, and while the defendant was in a violent, passion suddenly aroused by reason of Mosier having assaulted or struck Mm with a knife or stone, you will find the defendant guilty of manslaughter in the fourth degree and assess Ms punishment at imprisonment in the pemtentiary for a term of two years, or at imprisonment in the county jail for not less than six months nor more than twelve months, or a fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail for not less than three months nor more than twelve months.
“10. ' The court instructs the jury,- that, although • you may believe from the evidence that the defendant, Heath, did voluntarily engage in the difficulty with Mosier with intent to kill him or do him some great bodily harm, yet the defendant had the right to abandon the conflict and retire therefrom. And if you believe from the evidence that the defendant in good faith, after so voluntarily entering into the difficulty and before the firing of the fatal shot, with the honest purpose of abandoning further combat with said Mosier did abandon the same and withdraw therefrom as far as he could, or fled, and that said Mosier pursued and pressed hard upon defendant so that it became necessary for him to kill said Mosier to save himself from great bodily harm or from death, then the defendant under such circumstances had the right to defend himself and use such force as was reasonably necessary to protect himself from death or great bodily harm (even to the taking the life of Mosier) and this is true although you may believe from the evidence that the defendant was the aggressor.”
“12. You are further instructed, that, if you believe from the evidence that the defendant provoked the difficulty or began the quarrel, with the purpose of taking advantage of the deceased, and of taking his life, or doing him some great bodily harm, then there is no self-defense in the case however imminent the peril of the defendant may have become during the difficulty in consequence of an attack made upon him by the deceased; and if in such circumstances if the jury believe that the defendant shot and killed the deceased, then the defendant is guilty of murder in the first degree, and the jury should so find.
“13. The court instructs the jury, that, if they believe from the evidence ■ that the defendant made any threats against the life of Mosier, then such threats should be considered by the jury in determining whether the defendant was the aggressor, and also for the purpose of shoving what the intentions of the defendant were, at the time he entered into the difficulty, if the jury believe from the evidence that the defendant did enter into the difficulty.
“14. The court instructs the jury, that, if they believe the defendant made any statement or statements in relation to the crime charged in the information, after the crime is alleged to have been committed, the jury must consider such statement or statements all together. The defendant is entitled to the benefit of what he said for himself, if true, and the State is entitled to anything he said against himself in any conversation proyed by the State.”

The court gave the following instruction at the request of defendant:

“M. The court instructs the jury, that, if Mosier had threatened in the hearing of defendant to cut him, and had a knife in his hand, and the jury so believe from the evidence, then you will take those facts into consideration along with the other facts and circumstances in the case in order to determine which one of them made the first assault with a weapon upon the other, and if that be found to have been by Mosier then you will further consider those facts in like manner in determining whether the defendant had reasonable cause to believe and did believe at the time he shot Mosier that it was necessary to do so to save himself from death or great bodily harm.”

And refused the following among other instructions asked by defendant:

“A. The jury are instructed by the court that you shall not permit any sympathy, prejudice or bias, for or against the prosecution or defendant or other person, upon any grounds or from any source whatever, to influence or affect your consideration of the evidence, or your findings, or your verdict in 'this case. Your verdict must be found according to the evidence given to you here in court and under the law as contained in these instructions from the court.”
“H. The court instructs the jury, • that, if you believe from the evidence that if the defendant did voluntarily engage in the difficulty with Mosier, yet he had the right to abandon the conflict arid retire therefrom, and if it be. found that he did in good faith so attempt to withdraw from said difficulty, but that Mosier pursued and pressed hard on him with knife or stone, so that it became necessary to shoot the said Mosier to save the defendant from great bodily harm or from death, then the defendant had a right to defend himself and to use such force as was reasonably necessary to defend himself from death or great bodily harm, and this is true, even though the defendant was the aggressor.
“I. Manslaughter is the intentional killing of a human being in the heat of passion on a reasonable provocation; without malice or premeditation, as these terms are explained in these instructions, and under circumstances that will not make it justifiable or excusable homicide; and if the jury find and believe that the defendant in a sudden-heat of passion, on a reasonable provocation, intentionally shot and killed the deceased, without malice or premeditation, and riot in the necessary defense of his person, then the jury will find him guilty of manslaughter in the fourth degree, .and assess his punishment at imprisonment in the pentitentiary for two years, or at imprisonment in the county jail for not less than six nor more than' twelve months, or by a fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.”

The other instructions given by the court were such as are usually given and are not criticised here.

I. When this case was here on the first appeal this court said: “It is only necessary to suggest as to this proposition that upon a retrial of the ease it should not be overlooked; in order to warrant the giving of the instruction now under consideration, that it is essential that there should be some substantial testimony tending to show that the defendant, after the commencement of the difficulty, in good faith sought to withdraw from it, and unless there is some substantial testimony showing that state of facts the instruction should not be given at all, but should the facts warrant the giving of the instruction now under consideration it should be so modified as to harmonize with the cases herein indicated of State v. Cable, 117 Mo. 385, State v. Lockett, 168 Mo. 480, and other cases cited.”

There was no evidence on the last trial of the case tending to show a withdrawal by defendant; There was some evidence as to a retreat by defendant, but not as to a withdrawal. There is a wide difference between a withdrawal and a mere retreat. A retreat may be and often is a continuance of hostilities. A withdrawal is the abandonment of the struggle by one of the parties and such abandonment must be perceived by the other.

Wharton’s Crim. Law, vol. 1, see. 486, says-: “But though the defendant may have thus provoked the conflict, yet if he withdraws from it in good faith, and clearly announces his desire for peace, then if .he be pursued, his rights of self-defense revive. Of course there must be a real and bona-fide surrender and .withdrawal on his part; for if there be not, then he will still continue to be regarded as the aggressor. But if A really and evidently withdraws from the contest, and resorts to a place of security, and B, his antagonist, knowing that he is no longer in danger from A, nevertheless attacks A, then A’s rights in self-defense revive.”

McClain’s Crim. Law, vol. 1, sec. 310, says: “As appears from the preceding section, one who voluntarily enters into a combat, or is the original aggressor, cannot excuse a subsequent homicide committed in consequence thereof on the ground of self-defense, it being his duty to withdraw; but there must be allowed room for repentance and abandonment of the evil and unlawful purpose, and if the defendant, though originally in the wrong, does thus abandon his purpose, he may afterward exercise the right of self-defense. The withdrawal, however, must be in good faith; if the original assailant merely ceases to advance for the purpose of watching his opponent’s movements, and without attempting to avoid the encounter, he will not be excused for what he afterwards does on the ground of self-defense; and the fact of change of purpose must be known to the other party.”

Supposing the defendant wilfully brought on the contest with felonious intent, then the rights of the person assaulted would be determined by the law laid down by Wharton on Homicide, sec. 304, as follows: “The general rule is that a person free from fault when attacked by another, who manifestly intends by violence to take his life or do him great bodily harm, is not only not obliged to retreat, but may pursue his adversary until he has secured himself from danger; and if he Mil him in so doing it is justifiable self-defense. The right to pursue, as well as to omit to retreat, is essential to make perfect and complete the great natural right of self-defense, and its existence must be recognized by the courts in all eases in which the evidence is of a character to make it a legitimate subject of consideration by the jury.”

The rights above set out were the rights wMch Mosier possessed upon being attacked by defendant with felonious design, if he was so attacked.

Two persons cannot each hold one of two incompatible and opposing rights at the same time. If Mosier, on being feloniously attacked by defendant, had the right to pursue the retreating defendant sufficiently to make Ms (Mosier’s) defense good, then defendant did not have the right during' such retreat to defend himself against Mosier by taking Mosier’s life.

During that crucial time, Mosier had the right to slay his antagonist, and Heath, on account of his original felonious intent, had no right except to withdraw. It was only by withdrawal that he could be purged of his felonious intent.

In State v. Bailey, 190 Mo. l. c. 286, the following instruction whs approved: “The court instructs the jury that if the defendant voluntarily brought on the difficulty with deceased, or voluntarily entered into a difficulty with deceased, with the intention of killing or inflicting upon him some great bodily injury, if he should resist, then the danger in which he found himself, during such difficulty, no matter how great it might be, would not extenuate or mitigate the offense, or reduce its grade at all, and there can be no self-defense in the case.”

And that doctrine is recognized by Judge Kennish in State v. Sharp, 233 Mo. l. c. 292, when he says: “It is not true as asserted in this instruction, that there is no self-defense in a case where a defendant begins a quarrel or voluntarily enters into the same. It is only true where he does.so with the view to take advantage of the quarrel thus begun and to slay his adversary, or do him some great bodily harm. Whenever this is his purpose, he loses his right of self-defense, and if forced to slay his adversary, even though to save his own life, his act becomes murder in the first degree and nothing else.”

That language does not mean that there is no way open to defendant except to die or be a murderer. But it does mean that the ordy way of escape is to withdraw in such a way as to let his opponent know that he abandons the conflict. Wharton on Homicide, sec. 336, says: “The true principle is that where a person has been feloniously assaulted, and the felon has desisted from his attempt and taken flight, the right to pursue for the purpose of private defense ceases as soon as, in the reasonable belief of the assailed person, the danger has ceased to be imminent and impending.” And the same author says (see. 337): “Nor is there an abandonment of the difficulty where there was a continuous fight from the commencement to the finish.”

There was nothing to indicate to Mosier that danger from defendant had ceased to be “imminent and impending.” The defendant had not clearly indicated to Mosier that he desired to withdraw. If defendant did take a few backward steps, as he says he did, in the face of Mosier’s advance with the knife, there was nothing to indicate to Mosier that defendant had any purpose in so doing except to avoid danger from the knife at the time; and Mosier had the right on the facts shown by defendant’s testimony, to think that defendant was still seeking a chance to kill him.

It must be borne in mind that the rights of the parties as discussed under this head are those which exist when the accused brings on or voluntarily enters the difficulty with felonious design.

As there was no evidence tending to show a withdrawal, instruction numbered 12 was correct, and instruction numbered 10 was too favorable to defendant, and hence he cannot complain.

II. Instruction I asked by the defendant left it to the jury to §@,y what is a reasonable provocation. The court gave instruction numbered 9, fully covering the question of 'manslaughter in the fourth degree, and telling them that the “passion” must have been aroused by Mosier’s having assaulted or struck defendant with a knife or stone. The given instruction was correct and sufficient and defendant’s instruction was not. [State v. Reed, 154 Mo. l. c. 129.]

III. ' Objection is made to instruction 13 on the subject of- threats by defendant. No authority is shown, against .it. It seems to be a clear statement of the law as applied to the evidence, and he who alleges error must show it, which has not been done.

IV. The court instructed the jury that “statements of counsel are not evidence and should not’ be considered by the jury in arriving at their verdict.”

It is now contended that such instruction in effect nullified the testimony of one of defendant’s counsel, who testified as a witness in the case, and also destroyed the effect of the argument to the jury by defendant’s counsel. All the proceedings in the course of a trial are grounded on the hypothesis that all parties, including the jury, understand ordinary English. The rule that would require an explanation of the language of that instruction would require one explanation upon another until we should have “confusion worse confounded.”"

V. Instruction A asked by defendant may very well have been given by the court, but it would have been adding one more to a long list of instructions. The jurors, by being accepted on the panel, had been-shown to be clear of bias or prejudice in the case. They were during the trial kept from contact with the world except through the testimony in the case. So far as shown no testimony was admitted improperly showing' prejudice in the case. So far as sympathy is concerned, the defendant doubtless gained more than he lost by • sympathy. The evidence shows that he was forty-eight years old, the father of eleven children, many of whom were small, and several of whom testified in the case. The wife and children were doubtless present in the court room. "We are bound to presume that the jury knew that the great burden of suffering and sorrow; caused by the conviction would fall upon their innocent heads. No jury, except under a sense of the responsibility of their high office, could have been induced to convict of murder in the first degree in this case, if they had not believed, beyond a reasonable donbt, that the killing was a deliberate and unprovoked murder. And yet appellant’s counsel insist that the jury should have been told that they should not permit sympathy, prejudice or bias to influence them. Such an instruction may be helpful in some cases, but the defendant cannot complain of its refusal in this case.

VI. It was not error to exclude the offered testimony of Martha McGrew as to the particulars of the whipping of defendant’s daughter by Mosier on the morning of the killing. That point falls clearly within the ruling of this court on the former appeal, which forbids going into the trial of a collateral issue.

VII. Complaint is made that witness Shira was permitted to testify that he placed himself in the position “that Susie Thomas testified she occupied,” and that from that point the scene of the .difficulty could not be seen. Whatever error there may have been in that mode of examination was cured by the fact that the witness was fully cross-examined as to the point of his observation.

VIII. Complaint is made of the refusal of defendant’s instruction J as follows: “The court instructs the jury that the testimony of Clifford Noel and Dr. J. M. Williams as read to you from the record and deposition containing the same is competent evidence in the ease, and you will consider the same as if those witnesses were present and examined here in open court at this trial, as other witnesses under oath.”

It is insisted that the refusal of that instruction practically cut out that testimony, or at best left it on the low level of ex parte statement. Such a result certainly did not follow. The jury must be presumed to know that a deposition read on the trial is testimony, and likewise of -Noel’s testimony from the former bill of exceptions. But the assertion that the jury should consider that testimony the same as if the witnesses were present was the statement of an impossibility. The courts fully recognize the advantage or disadvantage of testimony by deposition. The personal appearance and demeanor of the witness, whether to his .credit or otherwise are not seen. For that reason appellate courts often defer to the findings of fact by trial courts when otherwise they would not. The instruction was unnecessary, to say the least of it.

There are many other points raised by counsel for appellant, but we find that some of them are opposed to the clearly settled law, and others are attempts to make new distinctions and refinements in the law for which there are no precedents and no apparent reason.

The judgment is affirmed.

Blair, C., having been of counsel, not sitting.

PER CURIAM.

The foregoing opinion of Roy, G., is adopted as the opinion of the court.


source: Caselaw Access Project

author: KENNISH, P. J.

license: Public Domain

text:
    THE STATE v. BRUCE BIDSTRUP, Appellant.
    Division Two,
    November 14, 1911.
    1. EVIDENCE: Plat: Must Be Correr.t. Plats and diagrams, descriptive of the place or locality involved in the issues on trial, to be admissible as independent evidence, must be shown to be accurate and correct. If the plat offered is shown to be so inaccurate that it would be confusing rather than helpful to the jury, it is properly excluded.
    2. -: Sufficient to Support Verdict: That of Adverse Party. If there is substantial evidence tending to prove the offense charged, the verdict will not be disturbed on appeal. And in determining its sufficiency, the court is not restricted to the testimony offered by the State, but will consider all evidence in the case, without regard to the party by whom it was introduced.

      3. -: -: Defendant's: Maiming and Wounding Another. Defendant testified that prior to November- 13th some one entered his house and several times some one had been prowling about his house at night; that he had prepared to watoh his premises to find out who the prowler was; that he concealed himself about fifty feet southeast of his house, with a double-barrelled shotgun, about 6:30 p. m., to watch for the trespasser; that in about thirty minutes he saw a man come to a lighted window on the south side of the house and peer through it, then back off, crouch down, remain in a crouching position for a short time, then arise and walk around to the north side, then return in a moment, walk close up to the window and stand looking into the house through the window; that the night was dark and he did not recognize the man; that he then aimed the gun at the man’s legs, and fired; that the man turned around two or three times as if startled and confused, and then ran west towards defendant’s front gate; that he ran towards him, called to him to stop, and, as he heard him still running, fired again in the direction in which the man had run; that carrying his gun, he ran towards the gate, and just before he reached it the man ran against it, and defendant ran up to him and for the first time recognized the man as a neighbor; that he struck at the man with his gun, and then dropped, the gun and grappled with him; that they fell to the ground and then a struggle ensued, with first , one and then the other on top; that the man drew his knife and cut défendant on the hand, after which defendant drew his own knife and began cutting at the man; that he realized that if the fight continued he must either kill the man or be killed by him, and for that reason he abandoned the conflict and ran back into his house, leaving his gun where it had fallen;' that, all this happened inside of defendant’s yard; and that he went into his house and did not go out until sometime the next morning. The man was found in a short time in the public east-and-west road, about one hundred yards west of defendant’s house, lying across a shotgun that was shown to belong to defendant, and was in great distress, was bleeding profusely, had been shot in the legs below the knees, and had been cut in the cheek with a sharp instrument. Held, that ■defendant’s own testimony fully warranted the verdict, convicting him of maiming and wounding by shooting with a shotgun.
    4. SELF-DEFENSE: Inconsistent with Defendant’s Testimony: Instruction. The defendant in a criminal case’is entitled to an' instruction submitting the defense of self-defense, although such defense is inconsistent with his.own testimony and arises upon facts and circumstances expressly denied by him, if such issue necessarily arises from testimony of the prosecuting witness or other witnesses.
    5. -: -: -: On All Law of Case. Under the statute (See. 5231, R. S. 1909), providing that, in criminal cases, “whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict,” it is the duty of the court to give a proper, instruction on the subject of self-defense, whether requested or not, if there is substantial evidence tending to prove that the defendant acted in self-defense, whether such testimony was introduced by the State or by the defendant, or in part by each, or whether it was introduced by the State and denied by the defendant.
    6. -: -: -: -: Defendant as Witness: Judicial Admission. When defendant goes on the stand as a witness, his testimony against Ms interest does not rise to the digMty of a judicial admission, and dofe°-therefore preclude him from asserting rights based upon any other competent testimony in the case.
    7. -: When Available. If a person has reasonable cause to apprehend immediate danger of death or great personal injury, he has a right to use such force as appears to Mm to be reasonably necessary to protect Mmself against such impending danger.
    8. -: -: Upon Testimony of Prosecuting Witness Alone: Instruction. The prosecuting witness testified that about seven o’clock of a dark November Mght he saw a man near Ms house and approacMng Ms door; that the man walked away and got over the fence into the orchard; that he followed and called, “Hello,” but received no response; that hearing the man runMng north he followed Mm and both ran through the timber and field for a distance of over a fourth of a mile; that when about ' half way across the field he, seeing the man was runmng in the direction of defendant’s home, believed the man was defendant, and thereafter he kept to the east so as to be between the man and defendant’s home; that when they were near a barbed wire fence on the north side of the field, wMeh belonged to Mm, along a public road, and near the defendant’s home, not hearing defendant, he advanced, looking for Mm, when a shot was fired close to Mm; that defendant then called Mm by name and told Mm not to come further or he would shoot again; that without speaMng he continued to advance upon defendant, when a second shot was fired; that he then heard defendant getting tMough the wire fence into the public road, and he also got over the fence and into the road, between the defendant and Ms home, whereupon they grappled, and fighting fell to the ground, and while they were fighting defendant cut Mm with a knife. There was evidence that defendant bore ill will to the witness, and also that the ill will was mutual. Held, that upon tMs testimony alone it was in-, cumbent upon the court to give an instruction on self-defense, although according to defendant’s own testimony there was no right of self-defense in the case.

      Appeal from Boone Circuit Court. — Hon. Wm. H. Martin, Judge.
    Be VERSED AND REMANDED.

      C. D. Corum and W. M. Williams for appellant.
    (1) The court erred in excluding the diagram or plat offered in evidence by defendant. Ency. Evidence, 638; Battishill v. Humphrey, 31 N. W. 894; Western Gas Con. Co. v. Danner, 97 Fed. 886; Brown v. Gales-burg P. B. & T. Co., 24 N. E. 523; LeBeau v. Telephone Co., 67 N. W. 339. (2) The court erred in refusing to submit to the jury the question of self-defense, based upon the testimony of the prosecuting witness, as asked by defendant, (a) Defendant was entitled to instructions submitting any issue presented by any of the testimony in the case. ' It was the duty of the court to give instructions covering the law applicable to all the facts in evidence, (b) The testimony of the prosecuting witness authorized an instruction upon self-defense. According to his statement, he saw defendant in his yard, but defendant had done no unlawful or wrongful act. If he had entertained an intention to do any such thing, it was abandoned and he was endeavoring to leave the premises when he was pursued by the prosecuting witness, who ran after him in the dark across a twenty-acre tract of land, endeavoring to catch him. The prosecuting .witness was advancing upon the defendant at the time he claims both shots were fired. He was told before the second shot not to come closer or defendant would shoot. Notwithstanding, he still advanced upon the defendant. Defendant had reasonable cause to believe from the prosecutor’s actions that he intended to inflict great bodily harm upon him. There was certainly evidence to take that issue to the jury. State v. Eaton, 75 Mo. 592; State v. Adler, 146 Mo. 18; Allison v. United States, 160 U. S. 203; Roach v. State, 17 S. W. 464. (e) The instruction asked by the defendant and refused by the court sufficiently presented a request for instructions on self-defense. If the instruction presented for any reason was objectionable, it was the duty of the court to give a proper one upon that subject. State v. Adler, 146 Mo. 18; State v. Clark, 147 Mo. 20; State v. Davis, 141 Mo. 522; State v. Fox, 148 Mo. 517. (3) The verdict is against the evidence and is not supported by the testimony on the part of the State.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    The five instructions, when read together, are exceedingly full and fair in covering appellant’s right •to defend his dwelling-house and inmates, by the use of the gun. State v. Taylor, 143 Mo. 150; State v. Reed, 154 Mo. 16’2; State v. Pollard, 139 Mo. 220; Morgan v. Durfee, 69 Mo. 469; State v. Raper, 141 Mo. 326; State v. Kennade, 121 Mo. 405; State v. Matthews, 148 Mo. 185; Norris v. Whyte, 158 Mo. 20; 3 Cyc. 1045. (2) The only point not covered in said given instructions was that of self-defense, and for the evident reason that there was no such issue in the case. Appellant denied being on the prosecuting witness’s premises, and also denied assaulting him there, and testified only to shooting him in the defense of his home and inmates on his own premises. It is true that he testified further that when he grappled with the prosecuting witness on his own premises, after firing both loads of his shotgun, and after he was cut in.the struggle on the ground, he used his own knife and cut the prosecuting witness, “had to do it or die,” but he was not charged with an assault with a knife, but only with a shotgun; the court did not instruct upon an assault with a knife and so the assault with the knife was not in issue and the court should not have so instructed. Moreover, it was in appellant’s favor that the court did not instruct on the assault with the knife, and not having so instructed, no instruction on self-defense should have been given, as all of such evidnee on self-defense was confined to the assault with the knife. Sec. 5115, R. S. 1909. An instruction on self-defense would have been an instruction to the jury to have considered a matter entirely foreign to the real issue before them. State v. Smith, 214 Mo. 255; 12 Cyc. 652. If appellant had established perfect self-defense in his use of the knife, still, it would not have affected in the least the question of his guilt or innocence of his prior assault with the shot gun. So it was not a question of law or fact arising in the case that was necessary for their information in giving their verdict. Sec. 5231, R. S. 1909. It was not a misdirection of the jury in a material matter of law. Sec. 5284, R. S. 1909. The court’s given instructions all limited the right of the jury to find appellant guilty only of the assault with the shot gun. If they failed to believe that he made the assault with the shot gun, they would have to acquit, so the assault with the knife was not in issue. If appellant had been charged with an assault with a deadly weapon not mentioned, then the case might have been different. The instructions should never enlarge upon the allegations in the information. State v. Kyle, 177 Mo. 659; State v. Seullin, 185 Mo. 709; State v. Moore, 178 Mo. 348; State v. Mulhall, 199 Mo. 202. Appellant must be guilty of the very crime charged. It should be borne in mind that this is: not a charge of assault with intent to kill, which requires a specific intent; but only a felonious assault requiring but a general felonious intent and in the commission of such unlawful assault the prosecuting witness was maimed and wounded. The wound is the gravamen of the latter offense. The State did not have to charge or prove each and every wound, maiming or disfiguring. One was sufficient to sustain the conviction, notwithstanding they were all inflicted during the one continuous assault. General felonious intent is sufficient — it is no excuse that he committed another crime.
   KENNISH, P. J.

At the May term, 1910, of the circuit court of Cooper county, appellant was convicted of maiming and wounding one Elmer Brubaker, by shooting him with a shotgun. The punishment assessed was a fine of one thousand dollars and imprisonment in the county jail for one year. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed to this court.

The testimony adduced at the trial showed the following facts, concerning which there was no material dispute:

Brubaker and the defendant both lived on what is known as the Warsaw and Boonville road, in Cooper county. This road runs along the west side and the north end of a twenty-acre tract of land owned by Brubaker. This tract is eighty rods long and forty rods wide. Brubaker lived near the southwest corner of the tract and the defendant near the northeast corner thereof. The residence of W. H. Varner is located near the northwest corner of the tract, on the north side of the road running east toward the défendant’s home.

Shortly after seven o’clock p., m. on November 13, 1909, W. H. Varner, his son-in-law and another young man were at the Varner home. They heard two reports of a gun and very soon thereafter heard some person call Mr. Varner. The person calling seemed to be in distress. The night was very dark and the three men procured a lantern and went in search of the person who had called Mr. Varner. At a point in the road, about midway between Varner’s front gate and the home of the defendant, they found .Brubaker lying in the,road. • He was lying with his body across a shotgun that was shown to belong to the defendant and was in great distress and was bleeding profusely from his injuries. He had been cut in the cheek with a sharp instrument, and shot in the legs, below the knees, with a shotgun. He was carried to the Varner home and there cared for during the xdght. As a result of the wounds in his right leg, which became gangrenous, his leg was amputated on the following day. ■

There was no eyewitness to the shooting. Except as to the fact that Brubaker’s injuries were inflicted by the defendant, the testimony of Brubaker contradicts the testimony of the defendant as to almost every fact and circumstance leading up to and connected with the encounter between the two.

Brubaker’s account of the affair was as follows:

About seven o’clock p. m., on the day in question, he was at his own home and went to the barn to turn his horses out for the night. As he returned from the barn he saw a man pass between him and his kitchen window. He walked around to the north side of the house to see if the man was going to his front door. He did not find the man at the front door, but heard bim ehmbing over the fence into the orchard, which was immediately north of his house. He followed into the orchard and called out, “Hello.” He received no response, but heard the man running in a northerly direction and ran after him. Alter they had run north for some distance, the man changed his course to a northeasterly direction. Brubaker then changed his course to the northeast and kept somewhat to the east of the man he was pursuing. When the two reached a point near the north end of the twenty acre tract, and near the point where Brubaker was found lying in the road, Brubaker could not see or hear the other man and turned and started in a southwesterly direction toward the point where he had last heard him. Just as lie started in that direction a shot was fired. It seemed to him that something had exploded almost under his feet, but he did not then realize that he had been shot. Just after the shot was fired he heard the defendant say, “Go back, Elmer, or I will shoot you again.” He took about two steps in the direction from which he heard the defendant’s voice and another shot was fired. At the time each of the shots was fired he was moving in the direction of the defendant. He was then near the wire fence that separated his land from the road and heard the defendant chmbing over or through the wire fence. He climbed over the fence to the east of where he heard the defendant in the fence. Just as he got out in the road the defendant rushed upon him from the west and struck at him with the shotgun. He grabbed at the gun and it fell to the ground. They then clinched and both fell to the ground fighting. The defendant drew his knife and cut him in the face, and he, Brubaker, then called to Varner for help. When he called to Varner the defendant arose and ran east toward his home.

The defendant, in his testimony, gave the following version:

Prior to November 13, 1909, some person had entered his house, and several times prior to that date some person had been prowling about his home at night. He made preparations to watch his premises and find out who was prowling about his place at night. About fifty feet southeast of his house he bruit a pen out of sticks of firewood. On the night in question, about 6:30 p. m., he secreted himself in this pen, armed with a double-barrelled shotgun, to watch for the trespasser. There was a window- in the south side of his house and a lighted lamp near the window on the inside. When he had been waiting in the pen about thirty minutes he saw a man come to this window and peer through it into the house. He could distinguish the form of a man but could not recognize him. The man backed off a few steps, crouched down,- and remained in a crouching position for a short time, and then arose and walked around to the other side of the house. ' In a moment- he returned, walked up close to the window and stood looking into the house through the window. The defendant then aimed the gun at the man’s legs and fired. The man turned around two or three times as if startled and confused and then ran west toward defendant’s front gate. Defendant ran to the point where the man had been standing, called to him to stop and, as he heard him still running, fired again in the direction the man had run. The defendant, carrying the gun, ran toward the gate. Just before he reached the gate the man ran against it and the defendant ran up to him and then for the first time recognized him as Brubaker. . Defendant struck at him with the gun and then dropped the gun and grappled with him. They fell' to the ground and a struggle ensued with first one and then the other on top. Brubaker drew his knife and cut the defendant on the hand, after which defendant drew his own knife and began cutting at Brubaker. Defendant realized that if the fight continued he must either kill Brubaker or be killed and for that reason abandoned the conflict'and ran back to his house, leaving his gun lying on the ground where it had fallen. All of this happened insid'e of defendant’s yard. Defendant went into his house and did not go outside again until the following morning.

The wives of Brubaker and the defendant were introduced as witnesses and each testified to facts tending to corroborate her husband.

A large number of witnesses testified on each side of the case. Their testimony was chiefly as to whether the encounter took place in the defendant’s yard, as claimed by defendant, or on Brubaker’s land, near where he was found in the. road, as claimed by Brubaker. It is sufficient for the purposes of this opinion to say that there was considerable evidence tending to corroborate both the prosecuting witness and the defendant as to where the difficulty occurred.

The record in the case is of considerable length.. We have examined it with care and, although it discloses numerous objections and exceptions saved by the defendant to the adverse rulings of the court, the ease was well tried, and we have concluded that only the errors assigned in appellant’s brief need be reviewed. Threé errors only are assigned, the first and third of which are without substantial merit, and may be disposed of first with but brief consideration.

I. Appellant complains that the court erred in excluding the diagram or plat offered in evidence by the defendant.

The law recognizes the value to the court and jury of plats and diagrams descriptive of the place or locality involved in the issues on trial, but to be admissible as independent evidence such plat or diagram must be shown to be accurate and correct. [Underhill on Criminal Evidence (2 Ed.) sec. 52; 17 Cyc. 412; 4 Ency. of Evidence, 641] The plat offered in evidence by the defendant in this case was proved to be so inaccurate that it would have been confusing rather than helpful to the jury, and for that reason it was properly excluded by the court.

II. Appellant’s third coinplaint is that “the verdict is against the evidence and is not supported by the testimony on the part of the State.” This assignment involves two propositions: (1) that the verdict is without support under all the evidence; (2) that it is not supported by the evidence for the State.

The defendant’s ■ own testimony fully warranted the verdict of the jury, and no principle of law is better established than that if there is substantial evidence tending to prove the offense charged, the verdict- will not be disturbed on appeal. [State v. Fields, 234 Mo. 615; State v. Sharp, 233 Mo. 269; State v. Cannon, 232 Mo. 205.] It is equally well established that in determining the sufficiency of the evidence, the court is not limited to the testimony offered by the adverse party, but will consider all the evidence in the case, without regard to the party by whom it was introduced. [State v. Meagher, 49 Mo. App. 571; State v. Martin, 230 Mo. 680; State v. Lackey, 230 Mo. 707.]

III. The defendant requested an instruction on self-defense, which was refused by the court, and that ruling is assigned as error.

This complaint raises a question of serious import, in the solution of which distinguished counsel have been unable to render material aid by the citation of authorities directly in point.

Although many witnesses testified in the case, the ruling of the court now in hand must be reviewed almost entirely in the light of the facts and circumstances as testified to on the one hand by Brubaker, a witness for the State and the injured party, and on the other by the defendant as a witness on his own behalf. And, strange as it may appear, it is conceded by defendant’s counsel that according to defendant’s own testimony there was no right of self-defense in the case, but it is contended that the right of the defendant to an instruction on that issue necessarily arose upon the testimony of Brubaker, the prosecuting witness. This unusual condition of the testimony naturally suggests two questions: First: Is the defendant in a criminal case entitled to an instruction submitting a defense inconsistent with his own testimony and arising upon facts and circumstances expressly denied by him? Second: If so entitled, did the right of self-defense arise in this case, upon a consideration of all the evidence, so as to require the submission of that issue to the jury under a proper instruction?

Section 5231, Revised Statutes 1909, governing the procedure in the trial of criminal cases, provides in part that “whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict.” Under this mandate of the statute, if there was substantial evidence tending to prove that the defendant acted in self-defense when he shot Brubaker, a question of law was raised upon which an instruction was clearly necessary “for the information of the jury in giving their verdict.” Whether such testimony was introduced by the State or by the defendant, or in part by each, or whether it was introduced by the State and denied by the defendant,- did not affect the duty of the court in the premises. When the defendant goes upon the stand as a witness, his testimony against his interest does not rise to the dignity of a judicial admission and therefore preclude him from asserting rights based upon any other competent testimony in the case. [1 Ency. of Evidence, 486; Knorpp v. Wagner, 195 Mo. 637; Montgomery v. State, 128 Wis. 183; Ephland v. Railroad, 57 Mo. App. l. c. 162.]

The rule is stated in 1 -Ency. of Evidence, supra, as follows: “The testimony of a party to the suit cannot be taken as an admission, in that action, of the truth of any fact, but only as evidence, like that, of any other witness in the case.”

In the ease of Knorpp v. Wagner, supra, this court, speaking through Lamm, J., said: “We have no doubt about the proposition that respondent and his witnesses may not agree and yet, for all that, the ease be a proper one for the jury, if there be competent evidence from any witness to enable the1 case to go to the jury. A suitor is but a witness, after all. . . A suitor, being but a witness, may be allowed to have the common infirmities of his kind, e. g., lapses of memory, inability to see things precisely as others do, and may not hear or may forget things actually said or done.”

In the case of Montgomery v. State, supra, the defendant was charged with the murder of his wife. The testimony for the State tended to prove a homicide committed in the heat of passion. The defendant testified that when his wife was fatally injured he was not angry, but was perfectly cool. The defendant asked an instruction on manslaughter, upon the theory, that the killing of the deceased was in the heat of passion. This instruction, based solely upon the evidence for the State, and inconsistent with the testimony of the defendant, was refused. Upon appeal the judgment was reversed and the cause remanded, the court holding that the trial court erred in refusing to give the instruction requested. Discussing the question of the right of the defendant to an instruction upon testimony in conflict with his own, the court said: “It is well established that while a party in either a civil or criminal case may not directly impeach his own witness, he may show that his testimony is not correct by other witnesses, who testify to a different state of facts. [Richards v. State, 82 Wis. 172; Collins v. Hoehle, 99 Wis. 639.] It has also been held in Massachusetts that there is no sound reason why this rule should not, if the circumstances are consistent with honesty and' good faith, be applied when the party himself is the witness, nor why, under the same circumstances, he may not rely on the testimony of the witnesses of the adverse party to prove material facts denied by his own testimony. [Hill v. West End St. R. Co., 158 Mass. 458.]”

There can be no question but that self-defense is a positive, affirmative defense, but it may arise as an issue in the case upon the evidence introduced by the State. [21 Cyc. 883, and eases cited; Frazier v. Commonwealth, 114 S. W. (Ky.) 268, and cases cited; Montgomery v. State, 128 Wis. 183; Crawford v. State, 12 Ga. 149; People v. Lemperle, 94 Cal. 45; Alexander v. People, 96 Ill. 96; State v. Castle, 133 N. C. 769; State v. Moss, 77 S. C. 391; Richardson v. State, 9 Tex. App. 612; McDaniel v. State, 8 Smedes & M. 401; Head v. State, 44 Miss. 731.] And whether the issue arises from the testimony of the one side or the other, or both, a question of law is presented upon which it becomes the duty of the court to instruct the jury for their information in giving their verdict. [Sec. 5231] R. S. 1909.]

The question remains, Did the evidence tend to prove that the defendant acted in self-defense in shooting Brubaker?

Brubaker testified that on the night of the difficulty he saw a man near his house and approaching the door; that the man then walked away and got over the yard fence; that he, Brubaker, called to the man but that the latter, without making any response, quickened his pace; that Brubaker followed him and both ran in the darkness through the timber and field for a distance of over a fourth of a mile; that when about half way across the field, Brubaker, seeing that the man was running in the direction of the defendant’s home, believed the man he was pursuing was the defendant Bidstrup, and that thereafter Brubaker kept to the east, so as to be between the defendant and his home; that when they were near a barbed wire fence on the north side of the field, along the public road, and near the defendant’s home, Brubaker, not hearing the defendant, advanced, looking for the defendant, when a shot was fired from close to him; that the defendant then called Brubaker by name and told him not to come further or he would shoot again; that Brubaker, without speaking, continued to advance upon-the defendant, when the second shot was fired; that he then heard the defendant getting through the wire fence into the public road and he also got over the fence and into the road, between the defendant and his home, -whereupon they grappled and fighting fell to the ground.

The defendant testified that when they were fighting on the ground, Brubaker cut Mm with a kmfe. It was in evidence that defendant bore ill will to Brubaker, and there was also evidence tending to prove that the ill will was mutual.

Assuming the truth of the facts and circumstances thus detailed, had the defendant reasonable cause to apprehend immediate danger of great personal injury, so as to justify shooting in self-defense?

It does not appear that the defendant was doing an unlawful act when near Brubaker’s home, nor does it appear why Brubaker was pursuing Mm, especially, after he knew that the man runrnng from Mm was the defendant. The fact that when Brubaker was advancing upon the defendant he said notMng but continued to advance, even after the first shot was fired and he was warned not to come nearer, strongly indicates that he was bent upon doing the defendant bodily injury. Brubaker’s subsequent conduct, in getting over the fence and closing with the defendant, after the fierce encounter in the field, together with the testimony that wMle fighting in the road Brubaker cut defendant with a kmfe, tends to prove a felomous purpose and intent of Brubaker in pursuing the defendant and in advancing upon Mm when the shots were fired. And we tMnk the foregoing facts and circumstances tended to prove that when the defendant fired the shots he had reasonable cause to believe that he was in immediate danger of great personal injury.

WMle self-defense is a law of necessity, yet, if a person has reasonable cause to apprehend immediate danger of death or great personal injury, he has a right to use such force as appears to Mm to be reasonably necessary to protect Mmself against such impending danger. In Kelley’s Criminal Law and Practice, section 519, discussing tMs subject, it is said: “It- is not essential, however, to this defense, that a felony was actually about to be committed or that the peril of great personal injury should be really imminent. If from the nature of the attack and attending circumstances, there is reasonable cause to believe that there is a design to commit a felony on the person, or to do some great personal injury, and also reasonable cause to believe that such design is about to be accomplished, the killing will be justified, although it should turn out that the appearances were false, and there was no design .to do any serious injury, or danger that it would be done. A man has a right to act upon the appearances. He is not obliged to wait until the nature and object of the attack are fully developed, nor to look beyond the apparent means of doing harm to ascertain whether the party is capable of ., aceomphshing the violence actually threatened and about to fall upon him, as he may honestly and reasonably believe.”

Whether the defendant had reasonable cause to apprehend immediate danger of death or great personal injury, was a question for the jury. It was not the province of the court to determine the facts from the testimony of these two witnesses, so diametrically opposed and so conflicting, upon the most material facts in issue. It was the duty of the court to instruct the jury, upon the assumption of the truth of the testimony for the State as well as the testimony for the defendant, leaving it to the jury to find the facts and determine the guilt or innocence of the defendant under proper instructions applicable to every phase of the testimony before them.

We are of the opinion that the court erred in failing to give an instruction to the jury, submitting the issue of self-defense, and for that reason the judgment is reversed and the cause remanded.

Ferriss and Brown, JJ., concur.


text:
    JEFFERSON S. ELLIS, Appellant, v. THOMAS O. NUCKOLS et al.
    Division Two,
    November 14, 1911.
    1. RETURN: False: Attack in Equity. The return oí the constable, reciting that he served the summons on the defendant, must be accepted as conclusive that the summons was served on the ' defendant and in the manner and form set forth in the return, in a subsequent suit by injunction by the defendant therein to restrain the levy of an execution issued in pursuance of a judgment rendered by default upon such return and summons, where it is not alleged that the plaintiff in that suit aided or abetted or had any knowledge of said alleged false return.
    2. -: In Nine Days: Effect Upon Judgment. A summons served a shorter time before the date of appearance than that fixed by law does not render the service invalid, nor is the judgment rendered in pursuance thereto for that reason void, but only irregular, and cannot be set aside or stayed by a suit in equity to enjoin its execution.
    3. -¡False: Judgment: Insolvent Constable and Invalid Bond: Injunction: Cause of Action. A petition alleging that suit was brought against plaintiff before a justice of the peace; that summons issued, but was never served upon defendant; that the constable’s return recites that it was served upon him less than ten days before the return day; that said return is false and untrue in every part, and that said false recital was carried forward into the judgment, rendered by default; that execution issued upon said judgment more than thirty days after it was rendered, and then for the first time the plaintiff learned that suit had been brought and judgment rendered; that the constable was insolvent, and his bond invalid and forged, and that plaintiff was without remedy except through equity, and that to permit such judgment to stand and execution to be levied would be to deprive plaintiff of his property without due process of law, and praying that the execution and levy be enjoined, there being no allegation that the plaintiff in the suit aided or abetted or had any knowledge of said false return, does not state a cause of action for equitable relief.
    Appeal from Lincoln Circuit Court. — Hon. James D. Barnett, Judge.
    Affirmed.

      B. H. Norton and Avery, Young & W°olfolk for appellant.
    (1) While the case at bar is in many respects similar to the case of Smoot v. Judd, 184 Mo. 508, yet the law as laid down by the majority in that case is not applicable to the facts in this. In the Smoot case, everything was regular. That is, the return of the officer showed not only a personal service, but the service itself was in the statutory time for actions of that kind. In the case at bar, not only is it alleged in the petition and shown by the alleged return of the officer serving it, but admitted by the defendant in this case, that the service was not in time. In other words, the statute requires a ten-days’ service before trial and before it gave to the justice the authority or jurisdiction to render a judgment by default or to try the case. We take it, then, that the rigor of the doctrine applied and laid down in the Smoot ease, though even in that case it seems to be harsh, was permissible only in a ease where all of the proceedings were regular and conformed to the requirements of the statute. (2) It is elementary law that a general demurrer, or a motion for judgment, admits every fact properly pleaded. Rogers v. Ins. Co., 186 Mo. 255; State ex rel. v. Shepard, 192 Mo. 497; Kemper v. Berkley, 79 Mo. App. 584.

      W. A. Dudley and B. L. Sutton for respondents.
    (1) The constable’s return is absolutely conclusive and cannot be impeached collaterally, either at law or in equity. Smoot v. Judd, 184 Mo. 508; Reiger v. Mullins, 210 Mo. 563; Jeffries v. Wright, 51 Mo. 215; Stewart v. Stringer, 41 Mo. 400; Hallowell v.' Page, 24 Mo. 590; Delinger v. Higgins, 26 Mo. 180; Martin v. YanDuzen, 37 Mo. 301. And the allegation in the petition contradicting such return is not admitted by the filing of the demurrer. Searcy v. Clay County, 176 Mo. 512. (2) The service of summons within less than ten days before the return day of the writ confers complete jurisdiction of the person of defendant and authorizes the rendition of a judgment which is valid and impregnable against collateral attack. Leonard v. Sparks, 117 Mo. 103; Crook-er Shoe Co. v. Fry, 104 Mo. App. 137; Fry v. Armstrong, 109 Mo. App. 482; Ballinger v. Tarbell, 16 Iowa, 491; Richter v. Thornton, 11 Ohio, 817; Armstrong v. Grant; 7 Kans. 196. And in such case the return of the officer, being regular on its face, stands upon the same footing of unquestionable verity as in case of full ten days’ service. It is the regularity of the return and not the regularity of the service shown thereby that sustains the verity of the return. Smoot v. Judd, 184 Mo. 518; Jeffries v. Wright, 51 Mo. 219; Delinger v. Higgins, 26 Mo. 183; Hallowell' v. Page, 24 Mo. 593; Stewart v. Stronger, 41 Mo. 404.
   KENNISH, P. J.

This is a suit instituted in the circuit court of Lincoln county to enjoin a levy upon and sale of plaintiff’s property under an execution issued on a judgment rendered by a justice of the peace against the plaintiff, and to have said judgment adjudged null and void. A general demurrer to the amended petition was sustained by the circuit court. The plaintiff declined to further plead and final judgment was rendered against him, from which judgment he appealed to this court.

The facts alleged in the amended petition were, in substance, as follows:

That on October 24, 1906, Abraham Duff filed a statement before a justice of the peace to recover damages from Jefferson S. Ellis, the plaintiff in this suit, in the sum of one hundred dollars, for 'alleged false and fraudulent representations made by said Ellis to said Duff in the sale of a horse; that on the day said statement was filed a summons was issued by the 'justice of the peace, returnable on November 5, 1906; that the constable made return of said summons, certifying thereon that he served the same in Lincoln county on October 27, 1906, by reading it to the defendant Ellis; that on November 5, 1906, the cause coming on for trial before the justice of the peace, judgment1 by default was rendered in favor of said Duff and against said Ellis in the sum of one hundred dollars; that on January 22, 1907, execution was issued on the judgment and placed in the hands of the constable, one of the defendants in this suit; that when this action was brought the constable was threatening to levy upon and sell plaintiff’s property to satisfy said judgment.

It is further alleged in the petition that in truth and in fact no summons was ever served upon the plaintiff at any time, notifying him of the institution of said suit before the justice of the peace, and that ,the return of said summons made by the constable was false and untrue in every particular; that the summons so pretended to be served on the plaintiff showed on its face that it was not served ten days before the day said cause was set for trial, as required by law, which fact was well known to said Duff through his attorneys; that plaintiff did not learn that there had been a trial of said suit and that a judgment had been rendered against him until January 28, 1907, when the defendant constable came to plaintiff’s home with the execution issued upon said judgment; that plaintiff had a good and meritorious defense to said complaint of Abraham Duff and on a trial of said cause would be able to show that no false representations were made to said Duff in the sale of the horse; that plaintiff had no adequate remedy at law for relief against said- threatened seizure and sale of his property; that the damages that would accrue from such seizure and sale of his property were such that they were not susceptible of computation; that said constable was wholly insolvent and neither at the time of the pretended service of said summons, nor at any other time, had an official bond as constable; that the signatures of two of the sureties on his pretended official bond were obtained by false and fraudulent representations and that those two sureties were wholly insolvent; that the pretended signatures of two other sureties on said pretended bond were forgeries; that said constable would, unless restrained and enjoined from so doing, levy upon and sell plaintiff’s property, and that plaintiff would thereby be deprived of his property without due process of law, in violation of both the State and Federal constitutions.

The only question for decision on this appeal is: Do the facts alleged, in the petition, which stand admitted by the demurrer, entitle the appellant to the equitable relief of a decree enjoining the enforcement of the judgment complained of and declaring such judgment null and void?

The authorities are not in accord upon the law involved in the decision of this ease, but we are of the opinion that the principles of law announced in the cases of Smoot v. Judd, 184 Mo. 508, and Leonard v. Sparks, 117 Mo. 103, together with the subsequent cases of the appellate courts of this State, reaffirming the doctrine of those cases, are determinative of the question presented.

The Smoot case holds, as stated in the second and third syllabi, that:

“Where the sheriff’s return recites a personal service of process upon the defendant, which recital is false, the remedy of the unserved defendant against whom judgment by default has been rendered, in the: absence of fraud on the part of the plaintiff in the> suit, is a suit on the sheriff’s bond for damages for the false return, and not by a suit to set aside the sale and the sheriff’s deed conveying the defendant’s land made in pursuance of such default judgment. The return of the sheriff showing service of summons on the defendant in the manner prescribed by the statute, although false, is conclusive upon the parties to the suit, and is not subject to attack in the case in which made, either before or after judgment.
“The officer’s return of a summons served according to the statute is conclusive upon the parties to the suit, and a judgment by default in pursuance thereof can not be attacked, even in equity, except where the plaintiff in the judgment aided or abetted the false return, and not even then if the property as a result of a sale under such judgment has passed into the hands of innocent purchasers. To permit a judgment to be overthrown by an equity court in such case, would be to impair the force and validity of judgments of courts of law, and to subject titles acquired by judicial sales to the greatest uncertainty.”

■ See also Rieger v. Mullins, 210 Mo. 563; Strobel v. Clark, 128 Mo. App. 48; State ex rel. v. Cowell, 125 Mo. App. 348; Regent Realty Co. v. Armour Packing Co., 112 Mo. App. 271.

It is alleged in the petition that the constable never at any time served any summons or other notice on plaintiff and that the return “on said summons is false and untrue in its every part.” It is not alleged that the plaintiff aided or abetted or had any knowledge of the said alleged false return. The return, therefore, under the foregoing authorities, must be accepted as conclusive in this case that the summons was served on the plaintiff and in the manner and form as set forth in the return. This removes from consideration the issue sought to be raised in the petition that plaintiff was not served with summons and that, therefore, the court was without jurisdiction to proceed to judgment in- the case.

The statute governing the procedure in justice of the peace courts provides that the summons shall bé served on the defendant at least ten days before he is required to appear. [Sec. 7423, R. S. 1909.] It is shown by the constable’s return and appears on the face of the judgment assailed, that the summons was served on the plaintiff less than ten days before the return day of the summons. Upon these facts the question is presented as to the effect upon the judgment sought to be vacated and set aside in this action, of a nine days’ service of summons upon the defendant against whom such judgment was rendered.

It has been considered settled law in this State since the case of Leonard v. Sparks, 117 Mo. 103, that a summons served a shorter time before the date of appearance than that fixed by law does not render the service invalid. It is but a' defect or irregularity, and a judgment upon such service -is not for that reason void, but only irregular. [Fry v. Armstrong, 109 Mo. App. 482; Leonard v. Sparks, supra; Railroad v. Warden, 73 Mo. App. 117.]

The fact that a judgment is irregular or erroneous furnishes no ground for equitable relief. In 23 Cyc. at page 1005, the law upon this subject is stated as follows: “Irregularities or errors in the proceedings leading up to a judgment furnish no ground for equitable interference, unless brought about by fraud or collusion, or of such a nature as to deprive the party of all opportunity of making his defense in the action at law.” As in Railroad v. Warden, supra, 1. c. 122, the court said: “But whether this be classed as a direct or collateral attack, the plaintiff must fail. ‘To authorize a.court of equity to set aside the judgment of another court, it must appear that' there was fraud in procuring the judgment; an illegal allowance or error is insufficient.’ [Murphy v. DeFrance, 105 Mo. 53, and cases cited at page 64; Davis v. Wade, 58 Mo. App. 641; Wyman v. Hardwicke, 52 Mo. App. 621; 2 Freeman on Judgments (4 Ed.), sec. 497.] There is no pretense of fraud in procuring the judgment sought to be enjoined or set aside by this suit.”

It is recognized as general law that a suit in equity will lie to vacate or set aside a judgment obtained by fraud, accident or mistake, and appellant invokes that principle in aid of his case.

Upon a careful examination of the petition and the law applicable to the facts thereof, we have found ourselves unable to bring this case within that doctrine, for the reason that the petition alleges no facts showing or tending to show the existence of either fraud, accident or mistake in the procurement of the judgment.

For the reasons stated the judgment is affirmed.

Ferriss and Brown, JJ., concur.