Defendant was indicted in the Benton county circuit court at its October term, 1881, for murder in the second degree in killing Walter Bartlett. At the May term, 1882, of said court, he was put upon trial and convicted of manslaughter in the fourth degree, and his punishment assessed at two years’ imprisonment in the penitentiary. The case is before us on defendant’s appeal, and the ground relied upon for a reversal of the judgment, is the action of the court in refusing to admit evidence, and in giving and refusing instructions.
The evidence preserved in the record tends to show the following facts: that deceased, the morning he was killed, went to the store of defendant where the post-office was kept, called for his mail and was. proceeding to leave when he was accosted by defendant in a friendly manner, who then said to Bartlett, “I understand that you accuse
Evidence was also introduced of threats made a short time previous by deceased against defendant, those made the day before the tragedy having been communicated to defendant.
1. eviuenoe: res gestae. During the examination of witness Brill, he was asked to state whether or not, a day or two before Bartlett was s^10tj he heard defendant say that his son had told him that Bartlett was angry with him and had threatened to mash his brains out, and whether or not defendant requested him to see Bartlett and explain to him that he had not worked against his wind-mill, and that he did not want any trouble with him. The refusal of the court to allow this question to be answered, it is insisted is error.
The statements sought to be proven were not a part of the res gestae, and being the statements of defendant offered in his own favor, were inadmissible under the rule laid down in the case of the State v. Evans, 65 Mo. 574.
The court, of its own motion, gave eleven instructions, the second of which is as follows: u Manslaughter is the intentional killing of a human being in a heat of passion, on a reasonable provocation, without malice and without premeditation, as these terms are hereinbefore explained, and under circumstances that will not be justifiable or excusable homicide; and if the jury find and believe that the defendant, in a sudden, passion, on a reasonable provocation, intentionally shot and killed the deceased, without malice or premeditation, and not in the necessary defense of his person, then the jury should find him guilty of manslaughter in the fourth degree and assess his punishment,” etc.
It is insisted that the evidence did not tend to show a case of manslaughter in the fourth degree, and that, therefore, it should not have been given. Under the evidence as we have stated it, and as it appears in the bill of excep
2. instructions, It is also insisted that the instruction is erroneous, in this, that it does not require the jury to base their finding and belief on the evidence. To sustain this objection, and to make such an omission reversible error, we would not only have to ignore the fact that jurors are ■at least men of ordinary intelligence, but also the fact that their oaths require them to return their verdict upon the evidence as well as the law. While the instruction is open to verbal criticism, we think the omission complained of is not of that character that would authorize interference with the judgment.
It is also insisted that the instruction is objectionable in this, that it did not tell the jury what was justifiable or excusable homicide. Had there been no other instruction given by the court as to excusable or justifiable homicide^ the objection made would be well taken; but as this ground was fully covered in the eighth instruction given, the objection is not well taken.
3. self-defense : apparent danger, The seventh instruction is objected to on the ground that while the jury are told that “ neither the use of such words, nor the demonstrations with said chair can affor<2 defendant any justification or excuse for shooting deceased, unless it was necessary to shoot said deceased in order to prevent him from killing defendant, or doing him some great bodily harm, and the danger of carrying out said design was immediate,” they were not further instructed that if defendant had reasonable ground to apprehend great bodily harm, and there was reasonable ground to believe that such harm was imminent, he might act on such appearance and kill the assailant if necessary to avoid the apprehended danger, though it might afterward turn out that the appearances were false and that there was no real danger of death or great bodily harm. It is
The principle is a correct one, and force and effect should be given to it only in a case where there are some facts disclosed by the evidence to which it would apply, and if refused in such a case would be reversible error. But in the case before us no such facts are disclosed, and the court did not, therefore, err in refusing to incorporate it either in the said seventh instruction or in the eighth, or in refusing to give defendant’s second instruction which .announced the principle. The only hostile demonstration made by deceased, as shown by the evidence, was with a split-bottomed chair, a real and not an apparent thing.
It is insisted that the eighth instruction should not have been given because there was no evidence that the difficulty had been discontinued or that Umfried renewed the difficulty and assaulted Bartlett. This objection is not well taken. According to the evidence, before deceased raised the chair as if to strike, he was seven or eight feet
As the instructions given by the court fully and fairly stated the law of self-defense, and what was justifiable or excusable homicide, the court did not err in refusing the instructions asked by defendant, inasmuch as they related to the same matter already covered by instructions that were given. The mere fact that the homicide was committed in the store-house of defendant, even though pro hac vice his dwelling, neither enlarged or limited the law of self-defense.
W e find nothing in the record authorizing an interference with the judgment, and it is hereby affirmed,