State v. Ferguson , 353 Mo. 46 ( 1944 )

ON MOTION FOR REHEARING. In her motion for a rehearing the appellant agrees with the view that "imperfect self-defense" means no more in the law of homicide than that if there is any evidence in the case, either from the state's evidence or from the defendant's evidence (State v. Wright, 352 Mo. 66, 175 S.W.2d 866), from which the jury could find a lack of malice on the part of the accused she is entitled to an instruction on manslaughter. The absence of malice, if found by the jury, reduces the degree and grade of the offense from murder to manslaughter.

[7] But the appellant contends that we have overlooked certain testimony [46] which brings the case within State v. Roberts,280 Mo. 669, 217 S.W. 988. In addition to the testimony set forth in the principal opinion the appellant directs our attention to that part of her cross-examination in which the Prosecuting Attorney was questioning her with reference to statements she was supposed to have made at the police station and particularly with respect to what she had said had happened when the second shot was fired. The prosecutor was asking her whether he had not asked her certain questions and whether she had not made certain answers, among others:

"Question. Was that in your bedroom? Answer.

`No, in the kitchen.' Question. `Where were you?' Answer. I think I was in the kitchen door, as I said, I had stepped out tosee what had happened and whether he was coming back at me orwhat.' Are those your words, Mrs. Ferguson? A. Yes."

In the first place, in State v. Roberts, the court was considering a self-defense instruction which covered the subject of voluntarily entering or renewing a difficulty as a pretext for the defendant's taking the life of his assailant. However, the court did say that if the "appellant wrongfully invoked or sought a renewal of the quarrel with the intention of merely overawing the deceased, or of holding him in check while a discussion could be had and a settlement or a mutual understanding reached as to their future status towards each other, or to accomplish any result other than the death or great bodily harm of the deceased, the appellant, while he would not be entitled to invoke the perfect right of self-defense, would under the well established rule, we think, be entitled to invoke the right known as the imperfect right of self-defense, which would reduce the crime to manslaughter in the fourth degree."

But in the second place, going into the kitchen "to see whathad happened and whether he was coming back at me or what" is an entirely different matter from returning to the controversy for the purpose of holding one's adversary in check for the purpose of reaching a mutual understanding or settlement of one's difficulties with one's adversary. Merely going into the kitchen, after having fired one shot, for the purpose of seeing "what hadhappened and whether he was coming back at me or what" is certainly not comparable to "Well, I went down 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." The latter statement and version of the matter dispels malice, while the former statement and circumstance is but consonant with self-defense and certainly consistent with murder.

The motion for a rehearing is overruled.