State v. Lashley , 318 Mo. 568 ( 1927 )

The facts are correctly stated in the majority opinion. A repetition of the same is therefore unnecessary, except so far as concerns the burden of this dissent, which relates to the failure of the trial court to give an instruction forMurder in murder in the second degree, held in the majoritySecond Degree. opinion to have been error.

The appellant stated that in a peaceful manner he approached the car in which the officer was sitting when the latter called to him to "come here" and upon his failure to comply with the request the officer fired a shot at him, to which (in defense of his person) he responded with six deadly shots and then fled from the scene. A negro woman, Lucy Higgins, says she was sitting at her window diagonally across from the intersection of the streets where the shooting occurred, and that she heard the appellant say when he went to the car: "I am tending to my business. I ain't bothering anyone," whereupon there was a shot fired out of the car and several shots were fired by the appellant into the car. It is contended that such credence should have been given to this testimony as to require the trial court to give an instruction for murder in the second degree. I cannot concur in this opinion. Not alone because it is contradicted by three disinterested eye-witnesses of the crime, but because it is contrary to human experience and is testimony which may, in the utmost fairness, be held to be a dernier ressort, given by the accused in an effort to palliate his crime. Its attempted corroboration by the witness who states that she was sitting at her window at two o'clock in the morning and heard the remark of the appellant and saw that the first shot was fired from the car, is to my mind, unworthy of belief. The jury gave no credence to the testimony of the appellant nor that of Lucy Higgins; and it had a far better opportunity to test the truthfulness of this testimony than can be had by this court with no source of information other than the cold record. The trial judge did not believe it, although he, like the jurors, had every opportunity afforded by the personal presence of the witnesses and their manner of testifying to determine as to their veracity. That he did not believe it is attested by the fact that he did not give the instruction for murder in the second degree held in the majority opinion to have been the sole error authorizing a reversal. Where, as here, the testimony relied upon to require the giving of an instruction for a lower grade of homicide than that charged is unworthy of belief it should not be held to authorize a reversal. To so hold would, in effect, be to usurp the province of the jury concerning their right to weigh the evidence and to pass upon the credibility of the witnesses.

Before discussing the cases which hold that instructions for murder in the second degree are not authorized when based upon testimony unworthy of belief, it is appropriate to refer to the recent cases which hold to the contrary. In State v. Kyles, 247 Mo. 640, it was held that there was no evidence of deliberation, and the testimony showing nothing more than an intentional killing, an instruction for murder in the second degree was authorized. This case can scarcely be held to sustain the ruling here under review.

In State v. Liolios, 285 Mo. 1, without reference to other relevant facts, the opinion holds that the defendant is entitled to an instruction for a lower grade of homicide than murder in the first degree on his testimony alone on the ground that our function is limited "to writing the law as it is written." This case may be fairly held to be more of an obeisance to the god of precedent than a regard for the relevant facts.

In State v. Jordan, 306 Mo. 3, 268 S.W. 64, it was ruled that an instruction for murder in the second degree should have been given. While the opinion does not fully state the testimony, an examination of the same, as we read it, does not disclose such a state of facts based on the testimony of the defendant, as to authorize the giving of the instruction. This testimony was wholly inconsistent not only with the defendant's earlier statements but contrary to all of the other testimony.

In State v. Snow, 238 S.W. (Mo.) 1070, the defendant did not testify and the rulings in that case are not relevant to the question here under consideration. Nor are the rulings in the cases of State v. Minor, 193 Mo. 597, 92 S.W. 466, and State v. Young, 119 Mo. 495, 24 S.W. 1038, when examined in the light of the testimony in each.

In State v. Crump, 267 S.W. (Mo.) 822, the giving of the instruction for murder in the second degree was based upon the testimony of the defendant and others, an examination of which will disclose that it was not at a variance with acts of a similar character, nor contrary to physical facts, nor the conduct of persons under like circumstances as was that of the appellant in the case at bar. The Crump case therefore cannot reasonably be held to support the conclusion reached in this case.

In State v. Williams, 274 S.W. (Mo.) 50, it was held to have been error not to instruct on murder in the second degree under the following facts, as stated in the opinion, that: "the theory of the State was that the defendant was guilty of murder in the first degree because the homicide was committed by lying in wait. The defendant's testimony was that he had not been waiting at the corner of Fifteenth and Chestnut streets for the deceased, but had gone there to get his breakfast, and that the deceased, when they met, said to him, `I guess you're ready this morning' and pulled out his knife and I fired and shot him, and he ran across the street and I fired again and it looked like he kept trying to get on me and I kept firing at him." This testimony was held to require the giving of an instruction for murder in the second degree, despite the fact that a former voluntary statement of the defendant introduced in evidence, which was made immediately after the commission of the crime, was contradictory in every material particular to his testimony on the stand. The writer dissented from this ruling (274 S.W. 52) and cited and discussed many cases determined by this court holding to the contrary.

It may be conceded that a defendant is entitled, under the statute (Sec. 4025, R.S. 1919), to instructions upon any phase of the case supported by substantial evidence, and where the facts warrant it such instruction may be authorized by the testimony of the defendant alone. It was never contemplated, as we said recently in State v. Webb, 205 S.W. (Mo.) l.c. 187, either under the statute above cited or in any of the judicial interpretations of the same (State v. Douglas, 258 Mo. 291, 167 S.W. 552; State v. Weinberg, 245 Mo. 575, 150 S.W. 1069; State v. Starr, 244 Mo. l.c. 176, 148 S.W. 862; State v. Conway, 241 Mo. 271, 145 S.W. 441), that an instruction based upon the testimony of the defendant alone should be given, when the falsity of that testimony is apparent, in that it contradicts all the other testimony and is not in accord with the physical facts and human experience. This rule accords with reason, and is in furtherance of a wholesome administration of the criminal law. It has been upheld in many cases. In State v. Tucker, 232 Mo. l.c. 18, 133 S.W. 27, it is held that, where the statements of the defendant contradict the physical facts and are inconsistent with human experience, the court is not bound to believe them, nor to instruct thereon for a lower grade of homicide than that supported by all the other testimony. In State v. Arnold, 206 Mo. l.c. 600, 105 S.W. 641, it is held that neither courts nor juries are required to accept as true evidence contradictory of the admitted physical facts in the case. In State v. King, 203 Mo. l.c. 571, 102 S.W. 515, the defendant sought to have the court give an instruction for a lower grade of homicide, based on his own testimony. Its refusal by the trial court was sustained upon appeal, on the ground that neither courts nor juries are required to stultify themselves by rejecting the irrefutable facts in a case. In State v. Vaughan, 200 Mo. l.c. 22, 98 S.W. 2, it is held that courts are not required to yield credence to the statements of a defendant absolutely inconsistent with the physical facts, and base an instruction on such simulated evidence. In State v. Fraga, 199 Mo. l.c. 136, 97 S.W. 898, it is held that, where the facts are clearly inconsistent with the defendant's account of the homicide, he is not entitled to an instruction on the ground of self-defense. In State v. Gartrell, 171 Mo. l.c. 523, 71 S.W. 1045, it is held that neither courts nor juries are bound to accept testimony contrary to well-known physical laws or the common experience of mankind, and hence an instruction asked by defendant, based on his testimony alone, was held not to be authorized. In State v. Pollard, 139 Mo. l.c. 228, 40 S.W. 949, it is held that neither courts nor juries are required to yield credence to the statements of a defendant, who, to save himself from justly merited punishment, challenges the array of all the physical facts in the case, and then boldly invokes instructions based on such simulated evidence. In Payne v. Railroad, 136 Mo. 583, 38 S.W. 308, the court holds that, even in criminal cases involving liberty or life, if a party testifies in opposition to obvious physical facts, neither courts nor juries are bound to give credence to such testimony. In State v. Nelson, 118 Mo. 124, 23 S.W. 1088, it is held that, while a defendant in a criminal case has a right to testify as to the intent with which he did the act, he is not entitled to an instruction upon his oral testimony, where it is contradicted by the physical facts.

To rule otherwise but tends to obstruct the administration of the criminal law and to add to the delays occasioned by reversals and to the opportunities, now too numerous, afforded criminals to escape punishment. No criminal case should be reversed unless it is evident that error has been committed prejudicial to the rights of the defendant. Such prejudice cannot arise by the refusal of an instruction which relies for its support upon testimony inconsistent with all of the other facts in the case and is contrary to reason and to human experience. Theorists may clamor and doctrinaires demand radical changes in our criminal laws as aids in lessening crime. Our statutes, both substantive and of procedure, are of such a nature as to not require modification to facilitate their effective enforcement. The remedy sought is not to be obtained through legislation. Prompt and vigorous prosecutions, a disregard of technical defenses, and convictions supported by substantial evidence will prove far more effective in lessening crime than any legislative panaceas. From the days of Bentham it has been declared without attempted refutation that the certainty and not the severity of punishment is the most effective deterrent of crime. That aphorism has lost none of its force in the years that have elapsed since its first declaration. If observed in the trial as well as the appellate courts it will not only effect a wholesome administration of the criminal law but tend to lessen crime. I am of the opinion, therefore that the judgment of the trial court should be affirmed.