Defendant was charged by information with murder in the first degree for shooting, with a shotgun, and killing, Clete Bachtel, in Carroll County, Missouri, on June 29, 1918. The information was filed September 14, 1919. It is in the usual form, charging defendant with murder in the first degree, except as to the conclusion, which reads as follows: "did kill and murder, against the peace and dignity of State." On October 6, 1919, defendant waived a formal arraignment and entered his plea of not guilty. On October 9, 1919, the jury returned into court the following verdict:
"We, the jury, find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for ten years."
The facts, as disclosed by the record, are substantially as follows:
Defendant, with his father and brother, and deceased, Clete Bachtel, hired a public auto livery at Carrollton, Missouri, driven by one Otte Steele, to take them to Alma, Missouri, which is across the river from Carrollton, in Saline County, Missouri. They left Carrollton between ten and eleven o'clock on the morning of June 29, 1918, crossed the river at Waverly, and arrived at Alma about noon. There they drank a few rounds of beer. The defendant and his father each purchased a pint of whiskey. The party remained in Alma about twenty minutes and started back to Carrollton. Shortly after getting back on the Carroll County side, deceased began trying to start a fight with defendant Adkins. He had the driver stop the car and invited defendant out to
fight him. Appellant refused to do so at the time, telling deceased that he wanted no trouble with him. Deceased then got back in the car and began to abuse defendant. As the party neared Carrollton, defendant instructed Steele to let him out of the automobile at the north end of what is known as the wire bridge, the same being a long bridge across the Wakenda Drainage District ditch, just southwest of Carrollton. Steele stopped the car at the north end of the bridge, as instructed; defendant got out of the car and started home across the bridge, taking with him his pint of whiskey. Deceased had been drinking after leaving Alma, was considerably under the influence of liquor, and, as the car started, after its stop at the bridge, jumped out of the car, ran back to defendant, and began to fight him. During the fight, deceased got the fingers of defendant in his mouth and badly lacerated them. In order to compel deceased to release his fingers, defendant cut him twice on the arm. The brother of defendant separated them, and persuaded deceased to go with him toward Carrollton. Deceased and defendant's brother started north. Deceased said to defendant when leaving the latter, that he would get defendant before night, or that he would get even with him for cutting him. After Pete Adkins and deceased started toward Carrollton, deceased picked up three or four bricks, and said he was going back down there to get even with defendant. Finally Pete persuaded him to throw the bricks down and go with him towards the home of defendant's father. Afterwards, deceased saw Winfrey and Underback near the Santa Fe depot, south of said bridge. He wanted them to take him to the wire bridge. He said he wanted to settle the fight that he and Adkins had had.
In the meantime, defendant stopped near the wire bridge, talking with Reed and Plaster, who had hitched their horse, with a spring wagon attached, to the south end of the bridge. They had talked there, perhaps a half hour, when Reed looked to the south and saw Bachtel
coming down the road toward them. Reed told defendant, he had better make it, as Bachtel was coming for trouble. Reed and Plaster were going squirrel-hunting, and had two shotguns in the wagon. As they were starting south in the wagon, defendant stepped to the rear of the wagon and got a single-barreled shotgun. He went east through a large gap, into a corn-field, in which corn was growing about knee-high, and went behind a clump of bushes about 150 feet east of the bridge. Reed and Plaster continued south on the road, and passed Bachtel. The latter had in his shirt bosom a protruding object, and did not speak to Reed or Plaster as he passed them, but continued north toward defendant. Bachtel passed the gap, through which the defendant passed into the corn-field, walked upon the bridge, looked around, came quickly back and walked through the gap directly toward defendant. The latter stepped from behind the bushes, leveled the gun on deceased and told him to stop. Deceased kept coming, and threw two pieces of rock or brick at defendant, then thrust his hands toward the protruding object in his shirt, at which time, defendant fired and killed deceased with said gun.
The evidence disclosed that deceased, when under the influence of liquor, had the reputation of being a dangerous and turbulent man.
An examination of the deceased's body indicated that death was caused from shotgun wounds in the face and forehead, some of the shot penetrating the brain.
Elaborate instructions were given by the court, which will be considered, with other matters, as far as necessary, in the opinion.
After defendant was sentenced, he was permitted by the court to prosecute his appeal to this court as a poor person.
I. Appellant is asking, that this cause be reversed and remanded upon two grounds, which are fully argued in the respective briefs of counsel. First. It is contended that the information is invalid, because it concludes
as follows: "against the peace and dignity ofInformation. State," the definite article "the," immediately preceding "State," being omitted. Appellant insists that said information fails to comply with Section 38 of Article VI of our Constitution, in respect to above matter, and, hence, it necessitates the reversal and remanding of the cause. Second. It is contended, that instruction numbered 10, given by the court, is fatally defective, in this, that it is an unwarranted comment on part of the evidence relied on by defendant as a defense, and should not have been given. We will dispose of above questions in the reverse order, for the obvious reason that, if the cause has to be reversed and remanded on account of the giving of said instruction, it will not be necessary to pass upon the first proposition, supra, as the prosecuting attorney can eliminate said question from the case by filing an amended information,
II. Instruction numbered ten complained of by appellant, reads as follows:
"Although you may believe from the evidence that the deceased bit the fingers of defendant in the altercation or combat testified to between the defendant and the deceased at or near the north end of the bridge, yet such biting of the fingers of the defendant did not give the defendant a right subsequently to assault deceased with a loaded shot-gun or to shoot him."
Section 5244, Revised Statutes 1909, provides, that:
"The court shall not, on the trial of the issue in any criminal case, sum up or comment upon the evidence."
Defendant claimed before the jury, that he shot deceased in self-defense. In passing upon his conduct at that time, it was the province of the jury alone to determine from the evidence whether appellant had reasonable cause, from what had formerly occurred and what took place at the time of the shooting, for believing that deceased would do him bodily harm, unless he defended
himself by shooting, as he did. The fight at the north end of the bridge, was one of deceased's own chosing, in which he was the aggressor, and during which he had bitten defendant's fingers.
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Defendant was charged by information with murder in the first degree for shooting, with a shotgun, and killing, Clete Bachtel, in Carroll County, Missouri, on June 29, 1918. The information was filed September 14, 1919. It is in the usual form, charging defendant with murder in the first degree, except as to the conclusion, which reads as follows: "did kill and murder, against the peace and dignity of State." On October 6, 1919, defendant waived a formal arraignment and entered his plea of not guilty. On October 9, 1919, the jury returned into court the following verdict:
"We, the jury, find the defendant guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for ten years."
The facts, as disclosed by the record, are substantially as follows:
Defendant, with his father and brother, and deceased, Clete Bachtel, hired a public auto livery at Carrollton, Missouri, driven by one Otte Steele, to take them to Alma, Missouri, which is across the river from Carrollton, in Saline County, Missouri. They left Carrollton between ten and eleven o'clock on the morning of June 29, 1918, crossed the river at Waverly, and arrived at Alma about noon. There they drank a few rounds of beer. The defendant and his father each purchased a pint of whiskey. The party remained in Alma about twenty minutes and started back to Carrollton. Shortly after getting back on the Carroll County side, deceased began trying to start a fight with defendant Adkins. He had the driver stop the car and invited defendant out to
fight him. Appellant refused to do so at the time, telling deceased that he wanted no trouble with him. Deceased then got back in the car and began to abuse defendant. As the party neared Carrollton, defendant instructed Steele to let him out of the automobile at the north end of what is known as the wire bridge, the same being a long bridge across the Wakenda Drainage District ditch, just southwest of Carrollton. Steele stopped the car at the north end of the bridge, as instructed; defendant got out of the car and started home across the bridge, taking with him his pint of whiskey. Deceased had been drinking after leaving Alma, was considerably under the influence of liquor, and, as the car started, after its stop at the bridge, jumped out of the car, ran back to defendant, and began to fight him. During the fight, deceased got the fingers of defendant in his mouth and badly lacerated them. In order to compel deceased to release his fingers, defendant cut him twice on the arm. The brother of defendant separated them, and persuaded deceased to go with him toward Carrollton. Deceased and defendant's brother started north. Deceased said to defendant when leaving the latter, that he would get defendant before night, or that he would get even with him for cutting him. After Pete Adkins and deceased started toward Carrollton, deceased picked up three or four bricks, and said he was going back down there to get even with defendant. Finally Pete persuaded him to throw the bricks down and go with him towards the home of defendant's father. Afterwards, deceased saw Winfrey and Underback near the Santa Fe depot, south of said bridge. He wanted them to take him to the wire bridge. He said he wanted to settle the fight that he and Adkins had had.
In the meantime, defendant stopped near the wire bridge, talking with Reed and Plaster, who had hitched their horse, with a spring wagon attached, to the south end of the bridge. They had talked there, perhaps a half hour, when Reed looked to the south and saw Bachtel
coming down the road toward them. Reed told defendant, he had better make it, as Bachtel was coming for trouble. Reed and Plaster were going squirrel-hunting, and had two shotguns in the wagon. As they were starting south in the wagon, defendant stepped to the rear of the wagon and got a single-barreled shotgun. He went east through a large gap, into a corn-field, in which corn was growing about knee-high, and went behind a clump of bushes about 150 feet east of the bridge. Reed and Plaster continued south on the road, and passed Bachtel. The latter had in his shirt bosom a protruding object, and did not speak to Reed or Plaster as he passed them, but continued north toward defendant. Bachtel passed the gap, through which the defendant passed into the corn-field, walked upon the bridge, looked around, came quickly back and walked through the gap directly toward defendant. The latter stepped from behind the bushes, leveled the gun on deceased and told him to stop. Deceased kept coming, and threw two pieces of rock or brick at defendant, then thrust his hands toward the protruding object in his shirt, at which time, defendant fired and killed deceased with said gun.
The evidence disclosed that deceased, when under the influence of liquor, had the reputation of being a dangerous and turbulent man.
An examination of the deceased's body indicated that death was caused from shotgun wounds in the face and forehead, some of the shot penetrating the brain.
Elaborate instructions were given by the court, which will be considered, with other matters, as far as necessary, in the opinion.
After defendant was sentenced, he was permitted by the court to prosecute his appeal to this court as a poor person.
I. Appellant is asking, that this cause be reversed and remanded upon two grounds, which are fully argued in the respective briefs of counsel. First. It is contended that the information is invalid, because it concludes
as follows: "against the peace and dignity ofInformation. State," the definite article "the," immediately preceding "State," being omitted. Appellant insists that said information fails to comply with Section 38 of Article VI of our Constitution, in respect to above matter, and, hence, it necessitates the reversal and remanding of the cause. Second. It is contended, that instruction numbered 10, given by the court, is fatally defective, in this, that it is an unwarranted comment on part of the evidence relied on by defendant as a defense, and should not have been given. We will dispose of above questions in the reverse order, for the obvious reason that, if the cause has to be reversed and remanded on account of the giving of said instruction, it will not be necessary to pass upon the first proposition, supra, as the prosecuting attorney can eliminate said question from the case by filing an amended information,
II. Instruction numbered ten complained of by appellant, reads as follows:
"Although you may believe from the evidence that the deceased bit the fingers of defendant in the altercation or combat testified to between the defendant and the deceased at or near the north end of the bridge, yet such biting of the fingers of the defendant did not give the defendant a right subsequently to assault deceased with a loaded shot-gun or to shoot him."
Section 5244, Revised Statutes 1909, provides, that:
"The court shall not, on the trial of the issue in any criminal case, sum up or comment upon the evidence."
Defendant claimed before the jury, that he shot deceased in self-defense. In passing upon his conduct at that time, it was the province of the jury alone to determine from the evidence whether appellant had reasonable cause, from what had formerly occurred and what took place at the time of the shooting, for believing that deceased would do him bodily harm, unless he defended
himself by shooting, as he did. The fight at the north end of the bridge, was one of deceased's own chosing, in which he was the aggressor, and during which he had bitten defendant's fingers. It was a question for the jury, and not the court, as to whether defendant shot deceased thereafter through revenge, on account of the latter's act in biting his fingers, or whether, in good faith, defendant had good reason for believing, when he shot deceased, that the latter would inflict injury on him, if not checked, as he had done in the former affray, when he bit defendant's fingers. The instruction, as given, practically eliminated this feature of defendant's defense. The jury, in considering the merits of the controversy, should have been left free to consider all that had occurred between deceased and defendant as shown by the evidence. Under the statute above quoted, the court had no legal right to single out that part of the affray at the north side of the bridge, relating to the biting of defendant's fingers, and to tell the jury the legal effect of such an isolated portion of the evidence, instead of leaving the jury to consider this question with all the other matters relied upon as a defense in the cause. We are of the opinion that the above instruction was not only prejudicial to defendant's rights, but that the giving of same was in contravention of the statute, supra, and the decisions of this court in construing same. [State v. Fish, 195 S.W. l.c. 998; State v. Dixon, 190 S.W. l.c. 294; State v. Malloch, 269 Mo. l.c. 239; State v. Rogers, 253 Mo. l.c. 412; State v. Shaffer, 253 Mo. l.c. 337; State v. Raftery, 252 Mo. l.c. 80; State v. Mitchell, 229 Mo. l.c. 697; State v. Rutherford, 152 Mo. 124, 133; State v. Reed, 137 Mo. l.c. 139; State v. McCanon,51 Mo. 160.]
In our opinion, the foregoing authorities leave no room for cavil or doubt, as to the illegality of said instruction ten. According to our conception of the law, if this instruction is sustained, the court, with the same propriety, could have instructed the jury that deceased's quarrelsome character did not afford any ground for
defendant shooting him. It could likewise have instructed that the threats of deceased, when leaving the scene of combat at the north end of the bridge where he had bitten defendant's fingers, to the effect that he would get defendant before night, did not, within itself, authorize defendant to shoot deceased.
In other words, we hold that the trial court was not justified in selecting detached portions of what occurred between defendant and deceased at the north end of the bridge, but should have left the jury to weigh all the evidence in the case, including the biting of defendant's fingers, in determining whether appellant shot deceased through revenge, or to avoid additional injuries at his hands.
On account of the giving of said instruction ten (10), the cause is reversed and remanded for a new trial. White andMozley CC., concur.