State v. Culler

82 Mo. 623

• Court: Supreme Court of Missouri
• Decided: October 15, 1884
• Status: Published

Opinions

Sherwood, J.

The defendant was indicted for the murder of one "Win. O. Deck by shooting him with a pistol. Ilis only plea was self-defense, and there was evidence which fully supported that plea, as well as evidence of a contrary effect. Tried, he was convicted of murder in the second degree and his punishment assessed at forty years imprisonment in the penitentiary.

Three grounds are urged for a reversal of the judgment:

First — Overruling defendant’s challenge for cause of certain members of the panel of forty from which the selection of jurors was made ; one of such panel being one of the jurors who tried the issue joined.

Second — The giving of the eighth instruction on behalf of the State.

Third — Giving the sixth instruction for the State.

These grounds will be considered in their order :

I. Dillmer, one of the panel of forty, asked on his-voir dire if he had formed or expressed an opinion as to the guilt or innocence of the accused answered “ that he had formed such opinion from reading the evidence as published in the papers taken before the coroner and that he had such opinion still.” Thereupon asked by the court if he could try -the case and render a verdict according to the law and the evidence regardless of everything he had previously read or heard of the case, answered he could. Asked, also, if he had any bias or prejudice for or against the prisoner, he answered in the negative, and the defendant’s challenge was disallowed. Other persons summoned on the panel, Wells, Canby, Hargrave and Terrell, being sworn to answer questions, answered that “ they had read the evidence taken before the coroner, and that they had formed an opinion from such testimony.” Upon this the defendant challenged them for cause, whereupon similar questions, as heretofore mentioned, were asked and answered in a similar way, resulting in the defendant’s challenge of them, also, being overruled.

Our statute is specific in its prohibitions that no accused party shall be required to make peremptory challenges until a panel of competent jurors is obtained. R. S., § 1,903; State v. Davis, 66 Mo. 684.

It is quite clear this statutory right of the defendant was denied him, so far as concerns those who “ had i’ead the evidence taken before the coroner.” And Wells, one of these, was afterwards sworn on the jury that tried the cause. Section 1,897, R. S., provides “ it shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue or any material fact to be tried; but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” The rule of the statute then is the absolute disqualification of every one offered for a juror who has formed or delivered an opinion on the issue, etc.; the exception is where such opinion is founded only on rumor or newspaper reports, and even the exception has no operative effect if they have been such as to prejudice or bias his mind. There can be no question, therefore, as to the absolute incompetency of those persons -who had “ read the evidence taken before the coroner ” and •formed an opinion therefrom, either to form a portion •of the panel of forty, or a fortiori to form a part of the jury which tried the issue joined as to the guilt or innocence of •the accused.

It may be fairly assumed that the four persons mentioned — Wells, Cabby, Hargrave and Terrell — had “read the testimony taken before the coroner,” while that testimony was unpublished and in manuscript, and with equal fairness it may be assumed that Dillmer had read the same evidence after it had become readily readable in consequence of being published in a printed form. Was not Dillmer also disqualified in consequence of having formed an opinion founded on such a basis ? The answer to this question turns upon another one : What are newspaper reports ? I take it that if in interpreting these words we are to obey the statute in such cases made and provided; i. e., that “ words and •phrases shall be taken in their plain and ordinary or usual sense ” (R. S'., § 3126), that we cannot be long at a loss for their true meaning. “ Rumor and newspaper reports,” if aa-c •apply the maxim noscitur a sociis, were intended to occupy in point of evidential force the same footing. If we look to the standards of our language rumor is found to be : “Flying or popular report; a current story passing from one qierson to another without any known authority for the truth of it.” Webster’s Dictionary. If next we turn to •“ report,” we find it one of the synonyms of “rumor,” another “ hearsay,” another “ storyso that when Ave couple the word “ newspaper” Avitk the word “ reports ” it would seem impossible to doubt the legislative meaning as being ■simply this : A rumor or current story printed in a newspaper. And the legislature must not be supposed to be ■either unmindful or ignorant of the meaning and of the slight value placed by the judiciary of this State on newspaper statements or reports. Speaking on this point McBride, J., in Baldwin’s Case, 12 Mo, 228, said: “ The information upon which the juror predicated his opinion was derived, from newspaper statements, which, of all other-sources of intelligence, are the most uncertain and unreliable ; gleaned as such matters are from streets' and alleys, beer-houses and oyster cellars of a large commercial city, and without any special pains being taken to ascertain the particulars of the affair.” And the legislature must not be held ignorant of that other definition of newspaper reports,, given by Lord Mansfield in Wilkes’ Case, 4 Burrows 2562,. where he speaks 'of “ that mandax infamia from the press,, which daily coins false facts and false motives.” If a witness, present at the coroner’s inquest, had related to one* afterwards summoned on the panel the testimony as given orally before the coroner, and such an one had formed an opinion on the issue, can it be doubted that he would have-been wholly disqualified under the very terms of the statute?' Does the disqualification lessen because the same information comes through a medium more authentic, and, also, in a permanent and official form? Dillmer answers that he read the evidence as published in the papers, taken before the coroner. There is nothing to show, nor is there any reason to doubt, that this evidence ivas identical in every respect with that read by Wells and others. Such a publication is. not, therefore, to be regarded as a mere “ newspaper report,”' and Dillmer as much so as Wells was disqualified.

In the recent case of State v. Stein, 79 Mo. 330, one sworn on his voir dire, stated he had formed his opinion “ from what purported to be the testimony of the witnesses before the coroner’s jury,” and afterwards, with others in like situation, he was placed on the panel and this being assigned for error, this court, speaking through Norton, J., said : “ It is unnecessary to note more particularly the action of the court in overruling defendant’s challenge for cause to four jurors, on the ground that from rumor and newspaper reports, they had formed decided opinions, further than to say that the rule in reference to the competency of jurors is laid down in the case of State v. Walton, 74 Mo. 270, and that, in passing upon the competency of. jurors, the rule should not be pushed beyond the limits therein prescribed.” This language is sufficient to show that in the opinion of this court “ newspaper reports ” are not synonyms of a full and complete statement of the testimony published in a newspaper, and that in Walton’s Case this court had reached the ultima Thule, beyond which judicial construction should not be permitted to pass. In Walton’s. Case, our latest adjudication on the point in hand, of the persons summoned as jurors and challenged for cause, one had read in the local papers what purported to be a substantial statement of the testimony given before a justice of the peace, and from this had formed and expressed liis opinion; and another had also read those local papers and had received a substantial statement of the testimony from parties who were present at the hearing before the justice, and had formed and expressed an opinion. I concurred in the ruling made by a majority of the court in that case ; a ruling which held those persons competent to serve as jurors. Since then I have examined with much care the ruling .then made in connection with the statutory provisions above quoted, and feel now constrained to say that we went a great way in that case, further, possibly, than I would be willing to go again. But be that as it may, conceding the correctness of that ruling, that case is no authority for this one, and cannot be invoked to ujffiold the ruling made by the court below, touching the competency of the jurors mentioned, for one of them had read “the evidence as published in the papers, taken before the coroner,” and others of them “ had read the evidence taken before the coroner.” Our statute expressly requires that the evidence of witnesses taken before the coroner, shall be reduced to writing aud subscribed by them, and such evidence is to be returned by him before the court possessed of criminal jurisdiction. 2 R. S., § 5,145.

There can be no doubt, therefore, of the absolute disqualification of those who had read the evidence officially ttaken in the cause, whether as written down by the coroner, or whether as published in the newspapers. To rule’ otherwise is to-rule the statute itself out of existence; to-substitute for its plain and simple mandates the ever-varying discretion of each trial judge in the State; to add to-the single exception named in the statute, numberless others, and to allow the oath of a juror that he can render a verdict according to the law'and the evidence, to neutralize- and overcome “ a good cause of challenge,” no matter on how firm a foundation such cause may be based; in short,, to nullify the statute and trample its behests under foot. For the reason that each one of the persons mentioned was disqualified to form the panel or to sit on the jury, the judgment should be reversed.

II. Relative to the sixth, instruction, given at the instance of the State, it is scarcely necessary to say more than this, that it is confused and unintelligible, and, therefore, well calculated to mislead the jury, and is, moreover, erroneous, if it declares the doctrine, which it seems to do, that Deck was authorized and justified in striking defendant with a club, notwithstanding defendant had done no act to prevent Deck putting up his fence, and that there was no-self-defense in resisting such a dangerous blow.

III. Of the eighth instruction given on behalf of the State, it may be said that if, by the word “ difficulty ” is-meant a mere altercation, wrangle, dispute or controversy confined to words and springing up on the spur of the moment, it does not state the law. Threats made by the-defendant of interfering with the building of the fence or against the deceased, unless some overt act were done with-a malicious and felonious purpose in view, wo'uld not take from the defendant the right of self-defense if the deceased first struck him with a club. Daniel v. State, 10 Lea 261. In that case Deaderick, C. J., observed : “The charge in this case holds in effect that a person who may, by improper conduct, provoke an assault, cannot be allowed to rely on the-plea of self-defense, nor can he rely upon such defense if he willingly engage in a fight, even if first assaulted and) stricken. * * Provoking words and gestures might be used from heat of blood, in a sudden quarrel, and a fight might, under such circumstances, be engaged in, during which a party might have the right to defend himself from impending' danger of death or great bodily harm.” See, also, 1 Wharton Crim. Law, §§ 476, 477, 485.

If, however, provocation is sought for, if the party killed is purposely provoked or assaulted in order to afford an opportunity to slay him, and then when goaded to madness he makes an assault and is thereupon killed, then the rule announced in State v. Hays, 23 Mo. 287, applies. In that case the jury were properly told that if “Hays intentionally brought on the difficulty for the purpose of killing Bi'Kwn,” he was guilty of murder. The fifth instruction for the State recognizes this principle, which is conspicuously absent from the one under discussion. Were it the rule, as announced in the eighth instruction, then a person who, without any ulterior or malicious purpose should, on the street, begin some sudden wrangle, altercation or dispute, or be the aggressor in some casual combat without weapons or malicious purpose, the party assailed either with tongue or fist, could draw a deadly weapon and take his life, and he be defenseless before his adversary, or a murderer if he successfully resisted the murderous assault. Such a doctrine, in my opinion, is consistent with neither reason, humanity or law. And it is only when the wordy quarrel or the actual non-felonious combat is provoked by the commeneer or aggressor in order to afford opportunity for him to kill his adversary, that the right of self-defense ceases, and the authority of Hays’ case can successfully be invoked. This seems to be the view entertained in State v. Christian, 66 Mo. 138, for after citing the cases of State v. Starr, 38 Mo. 270; State v. Linney, 52 Mo. 40; State v. Underwood, 57 Mo. 40; and quoting from them in reference to a party who “ seeks and brings on a difficulty,” Norton, J., says: “ Where the combat is the immediate consequence of a sudden quarrel, and not an act of deliberation or agreement, it might be different.”

The result reasonably deducible from the authorities cited and quoted from seems to be this, that while you may not bring on a combat in order to wreak your vengeance on your enemy, and then shield yourself behind the pretext of self-defense, yet where the quarrel is sudden, no felonious intent entertained, no deadly weapon used by the accused at the outset, that there the right to defend his life against an assault with a deadly weapon still exists in his favor and is not abrogated by reason of the fact that he began the sudden quarrel.

Since writingthe above, I have found a case which bears adose analogy to the present one. The case arose in North Carolina, a state where adjudications on the subject of murder are imbued with all the stern rigor of the ancient common law. In the case refei’red to, the defendant was convicted of murder in the first degree. He had been stabbed by the deceased', but he had “ brought on the difficulty ” by striking the deceased a blow with his fist, when the deceased stabbed him, and ho thereupon stabbed and killed the deceased, but in circumstances which rendered it doubtful whether the act of the prisoner was the result of passion in consequence of being stabbed, or was necessary in self-defense, and Gaston, J., observed: “It was necessary that the. jury should, in the first place, ascertain whether the prisoner commenced the affray with a preconceived purpose to kill the deceased, or to do him great bodily harm. Eor if he did, then there was nothing in the subsequent occurrences of the transaction, which could free him from the guilt of murder. If the first assault was made with this purpose, the malice of that assault, notwithstanding the violence with which it was returned by the deceased, communicates its character to the last act of the prisoner. * * If, upon consideration of all the evidence, the jury came to the conclusion that the first assault of the prisoner was not of malice prepense, then the subsequent occurrences demanded their careful consideration, because upon these the prisoner’s guilt might be extenuated into manslaughter, or excused as a homicide in .self-defense.” State v. Hill, 4 Dev. & Batt. 491. This case fully supports and maintains the views I have hitherto expressed.

Eor the reasons heretofore given, the judgment should "be reversed and the cause remanded.

Hough, C. J., and Henry, J., concur in the first paragraph of this opinion, .and Norton and Ray, JJ., dissent. Henry, J., concurs, also, in the other paragraphs.

The judgment is reversed and the cause remanded on .account of the error mentioned in the first paragraph.