I do not concur in the majority opinion.
I. Appellant's testimony is the sole support for the contention that he was entitled to an instruction for manslaughter in the fourth degree. A summary of this testimony is to be found in his explanation of his intention in returning to the scene of the trouble. We give it in his own words: "I went downManslaughter. there to see if I could settle the difficulty without any further trouble, if I could, because I wanted to settle it while it was new. He and I had been good friends and I thought probably I could do it in that way, and I took the gun along with me to defend myself, if I couldn't."
This testimony is to be measured by the rules governing the testimony of other witnesses. [State v. Martin, 230 Mo. 680.] If such testimony is not found to be at a variance with defendant's other testimony and the physical facts to the extent of being unreasonable and contrary to the ordinary experience of mankind, then the instruction should be given. [State v. Anderson, *Page 684 89 Mo. 332; State v. Gilmore, 95 Mo. l.c. 565; State v. Musick,101 Mo. 272; State v. Bryant, 102 Mo. 24; State v. Turlington,102 Mo. 642; State v. Talmage, 107 Mo. l.c. 570; State v. Nelson, 118 Mo. l.c. 126; State v. Brown, 119 Mo. l.c. 538; State v. Pollard, 139 Mo. l.c. 228; State v. Hancock, 148 Mo. 488; State v. Holloway, 161 Mo. l.c. 144; State v. Hamilton, 170 Mo. 377; State v. Fraga, 199 Mo. l.c. 136; State v. Vaughan, 200 Mo. l.c. 22; State v. King, 203 Mo. l.c. 571; State v. Arnold, 206 Mo. l.c. 600; State v. Tucker, 232 Mo. l.c. 18.]
No fell purpose is evident from the tenor of appellant's explanatory testimony, except the presence of the shotgun. On the contrary, its spirit in other respects is commendable, in manifesting a desire to avoid further difference with the deceased. Thus it may be interpreted as it stands alone. It, however, should be construed in conjunction with appellant's other testimony and the unquestioned physical facts. Looking to this source of enlightenment, we find that the appellant sought the presence of the deceased, bandied words with him, abusive on each side, concerning a minor difference between them. Whereupon, the deceased threw a neck-yoke at the appellant. The latter left the scene, saying he would return shortly, and went to his residence, one-eighth of a mile distant. The deceased did not pursue him or manifest any intention to continue the difficulty. Instead of remaining away, the appellant returned at once, armed with a loaded double-barrelled shotgun. Ignoring, at this juncture, the testimony of the colored man, the only other witness to the killing, as to the opprobrious words applied by the appellant to the deceased, appellant's testimony discloses that he returned to the premises of the deceased and some further words passed between them; that when he was within about seventy-five feet of the deceased, the latter picked up an old ax and was about to advance towards the appellant, whereupon the latter shot twice in rapid succession, killing the deceased almost instantly. *Page 685
In the face of these facts, we are asked to give credence to the attempted mitigatory plea of the appellant, that his purpose in returning to the scene was purely pacific; that his going away, the former difference having ended, left no time for deliberation; that his procuring the loaded shotgun and returning to the scene marked no malign purpose, but indicated that the symbolical dove was hovering over his disposition. This is the first instance in the turbid history of human passion that a loaded shotgun has been used to typify an olive branch. The proper disposition of this question, however, is a matter of too serious import in the enforcement of the law against crime to be disposed of by decorating it with the furbelows of rhetoric. It demands for its just disposition, plain, stern words, rather than figures of speech. The value, in truth, of testimony, and hence the credence which should be given to it, may fairly be tested by average human experience or what the ordinary man would most reasonably be expected to do under like circumstances. Thus measured, in the light of all the attendant facts, the appellant's testimony falls short of manifesting the purpose its mere words would indicate. It is in ill accord with the usual actions of men that when one is well away from recent trouble, and one knows that his adversary, as appellant states, was a turbulent man, will return to the latter's presence to mollify his anger, armed with a deadly weapon. Thus accoutered, the return of the appellant immediately following the former difficulty constituted a menace rather than a means of mediation. Peacefully inclined men do not resort to such aids or assume such attitudes to further their inclination to avoid trouble.
In addition, the presumption of malice attending the use of a deadly weapon must obtain if, as we maintain, appellant's testimony is unworthy of belief. This would preclude the giving of the instruction for manslaughter. [State v. Bauerle,145 Mo. 1; State v. Musick, 101 Mo. 260.]
We are, therefore, of the opinion that the testimony of the appellant, as to the reasons prompting him to *Page 686 return to the scene of the killing is but a weak pretext to hide a purpose deliberately formed to wreak his malice upon the deceased, and that such an interpretation is authorized by the other evidence. So construed, sustained by the array of authorities we have cited, no instruction for a lower grade of homicide than that given was authorized.
II. The giving of instruction numbered 12, on self-defense, is assigned as error in the majority opinion. On the appellant's own testimony, he was guilty of murder in either the first or second degree. He went to the scene of the difficultySelf-Defense. armed with a deadly weapon and, under a fair interpretation of all of the testimony, viewed in the light of human experience, he brought on the difficulty. Under such circumstances, an instruction for self-defense was not authorized (State v. Larkin, 250 Mo. 218; State v. Miles,253 Mo. 427), and in its giving appellant was favored and has no cause of complaint.
III. The judgment of the trial court herein should be affirmed.Williamson, J., concurs in this dissent.