The defendant was indicted at the October' term, 1878, of the Benton circuit court for the murder of James S. Hatler, on the 26th of August, 1878. He was ar-. rested under that indictment and admitted to bail September 11th, 1879. At the ensuing October term of said court a second indictment was found against him for the same offense, charging the shooting to have been done on the 30th day of August, 1878, and thatHatler’s death resulted from it on the 1st day of September, 1878. He was arraigned at the October term, 1879, and pleaded not guilty, but there was a mis-trial. He was tried again at the May term,'1880; and found guilty of murder in the second degree, and his punishment assessed at fifteen years in'the penitentiary. From the judgment thereon he has appealed.
l. pendency of men?. No notice was taken of the fact that an indictment against him for the same effense was preferred by the grand jury at the October term, 1878,,
Section 1808 of the Revised Statutes provides that: “ If there be at any time pending against the same defendant two indictments for the same offense’, or two indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment and shall be quashed.” The statute of New York is identical with ours, except that, where the word “suspended ” occurs in ours, the word “ superseded ” is employed in the New York statute.
In Austin v. State, 12 Mo. 394, the court, commenting on section 4, page 867, of the Revised Statutes, identical with section 1808 of the present revision, said : “ This statute is the law that must govern in this case, and I must examine the defendant’s plea by this statute. A plea under this Btatute should state that the indictment pleaded to was the one which was first found, and should state that
In the People v. Fisher, 14 Wend. 9, the same question was raised on that section of the New York statute above noticed, and Savage, C. J., said: “We have the authority of Hawkins for saying that a plea of a former indictment pending for the same offense, is bad, and by our Revised Statutes, the first indictment is superseded by the second, and liable to be quashed. It is not, therefore, a bar to such second indictment.” For these reasons, and on the foregoing authorities, we are constrained to overrule the State v-Smith, and so much of the State v. Webb as sanctions it. '
The evidence on the trial of the accused was conflicting. On the part of the State, it tended to prove that the defendant was in a store-house in the town of Fairfield, and through the store window saw deceased passing along the street, and, stepping to the door, called to the deceased to “ throw up his hands,” and instantly shot him, inflicting
2. murder rn THE second degree, The court instructed the jury on murder in the first and second degree, and manslaughter. The court correctly defined murder in the second degree to be u willful, felonious and premeditated killing of a human being, with malice aforethought, but without deliberation,” as these terms, “ willful,” “ felonious,”
s murder- (jeiiberation. The court, however, in its first instruction incorrectly defined the word “ deliberation ” to mean “ in a cool state of. blood, that- is, not in a state of mental excitement, caused by lawful provocation,” etc. State v. Wieners, 66 Mo. 18; State v. Curtis, 70 Mo. 594.
i_. seiMo_ Iense- ■ The instruction given by the court on the theory of self-defense, correctly told the jury: “ If defendant had reasonable cause to apprehend a design on the part of deceased to do him some great personal injury, and there was reasonable cause to apprehend immediate danger of such design being accomplished, without the fault of defendant, they should acquit him;” but the court refused an instruction asked by defendant, embodying the principle contained in the foregoing instruction, with the addition, that “then defendant had the right to act upon appearances, and even kill Ilatler if necessary to avoid the apprehended danger, and such killing was justifiable, although it might afterward turn out that the appearance was false, and there was, in fact, neither design on the part of Iiatler to do him serious injury, nor danger that it would be done.” On the evidence' introduced for •the defense, that instruction should have been given. 2
5--: threats, Appellant also complains of one of the instructions given to the jury with respect to alleged threats made against him by the deceased. It was as follows, in substance : That although the jury should believe from the evidence that Hatler was reputed to be a vindictive, rash and dangerous man, and had, previous to his death, made threats against Eaton, and that these threats had been communicated to Eaton, yet these circumstances alone would not justify or excuse the offense of murder, provided they believed, that at the time of the homicide Hatler made no assault, and used no personal violence against Eaton.
No such instruction should have been given, because there was no evidence that any threat made by Hatler had ever been communicated to Eaton; and if it had been otherwise, the instruction is erroneous in that it requires one whose life has been threatened, to wait, before he begins to defend himself, for personal violence or an assault made upon him. The instruction in this respect is inconsistent with the instructions given by the court, on the theory of self-defense. We are not to be understood as giving sanction to the doctrine, that a threatened man may
We think the court did not err in instructing the jury on murder of the second degree. Whether it was a deliberate murder, or a murder committed without deliberation, on a provocation given at the time, or manslaughter, or excusable homicide, -was properly left to the jury to determine, on all the facts before'them. If they had found him guilty of either of the offenses, we could not say that the verdict was not warranted by the evidence.
e criminal law-witnesses. Nor did the court err in refusing to compel the State to call other persons to testify for the State, after she had °1°8(3(1 her evidence, on the suggestion of defendant’s counsel that there were, besides those already introduced by the State, other persons present who witnessed the homicide. The People v. Jno. Gordon, 40 Mich. 716, is relied upon by appellant as sustaining him'in this position. We do not so understand the case. Campbell, C. J., delivering the opinion of the court, observed that: “The prosecution had in court a witness named in the information, convicted of the charge, who was in the custody of the law, and wdho must necessarily have known the facts. Their suppression of this positive testimony, which they were in every consideration of justice bound to produce, entitled the prisoner to every inference that could be drawn from it.” It was not there held that the refusal or neglect to call such witness, was an error which would warrant a reversal of the judgment.
Nor do we think the indictment open to the objection urged by the appellant, that the “ striking,” “ penetrating” and “ wounding ” of the deceased is not alleged to have been willfully done. It alleged that defendant, “ feloniously, willfully, deliberately', premeditatedly and of his malice aforethought, did make an assault” upon the body of James Ilatler, and that said Joseph Eaton, with a pistol then and there charged with gunpowder, etc., which he held in his hands, then and thex-e feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, ■discharged and shot off to, at and against said Ilatler; and that said Eaton, with one of the bullets, aforesaid, out of the pistol, then and there by him shot off' and dischax’ged, then and there feloniously, deliberately, premeditatedly and of his malice aforethought, did strike, penetrate and
7. practice, curarinal: clerical error in indictment. The indictment also charged the wounding of deceased to have occurred on the 80th of August, and that Hatler, in consequence thereof, languished until the . _ x _ . , , n . , 1st of September, on which clay 01 August in the same year be died. The insertion of August for September was manifestly a clerical mistake, and is not a 'sufficient ground for arresting the judgment. Ailstock's case, 8 Gratt. 650.
For the reasons hereinbefore assigned, the judgment .is reversed and the cause remanded.