
    STATE v. HIGGERSON, Appellant.
    Division Two,
    June 26, 1900.
    1 Self-Defense as Defense. Unless defendant seeks and brings on tbe difficulty with the design to wreak his malice, he does not forfeit his right of self-defense.
    2. Felonious Assault: INSTRUCTIONS tor common assault. Where one is indicted for felonious assault, and by the evidence is either guilty of maliciously cutting another with a knife, or entitled to an acquittal because of having acted in self-defense, there should be no instruction for common assault.
    3. -: cutting with A knife. When a deadly weapon is used in making an assault upon a person, such as a knife, the law, in the absence of countervailing testimony or circumstances, presumes malice.
    Appeal from Cooper Circuit Court. — Hon. T. B. Robinson, Judge.
    BeVERSED AND REMANDED.
    W. 0. & G. T. Pendleton for appellant. .
    Instruction 1 is manifestly erroneous being a decided comment upon tbe evidence, in undertaking to tell tbe jury wbat was tbe sum of certain facts in evidence, from wbicb it was for tbe jury, and not tbe court, to deduce a conclusion. Tbe facts recapitulated in said instruction were, in evidence merely to show tbe existence of another fact, wbicb was to be found by tbe jury, namely: that prosecuting witness bad reasonable cause to apprehend that defendant was about to do him some great personal injury; and “when one fact or piece of evidence is merely used to show tbe existence of another fact wbicb is to be found by tbe jury, tbe court can not, by way of instruction, direct the jury tbat tbe inference is warranted.” State v. Sivils, 305 Mo. 530; Chou-quette v. Barada, 28 Mo. 491; Carroll v. Paul, 16 Mo. 227; Rose v. Spies, 44 Mo. 20; Meyer v. Railroad, 40 Mo. 151; State v. Smith, 53 Mo. 267. Instructions in criminal cases which are in the nature of a comment on the evidence are in violation of the express provisions of the statute on the subject. R. S. 1889, sec. 4220; State v. Holmes, 17 Mo. 379; State v. Sivils, 105 Mo. 530; State v. Eairlamb, 121 Mo. 137. And even though the comment is correct, such fact does not cure the vice of instructions which comment on the evidence. Jones v. Jones, 57 Mo. 138.
    
      Edward O. Grow, Attorney-General, and 8am B. Jeffries, Assistant Attorney-General, for the State.
    (1) The court committed no error in refusing instructions numbered 1, 2 and 3, offered by defendant for the reason that instructions 9 and 10, given by the court, covered the same ground. Where the instructions given fully and ' fairly state the law, refusal of others of the same effect will not constitute error. State v. Maher, 132 Mo. 279; Tyler v. Hall, 106 Mo. 313; State v. Partlow, 90 Mo. 608. (2) The case can not be reversed on account of instruction Tl, since instructions 9 and 10 throw such light upon it that when read in connection with them, it is not prejudicial to defendant. In determining whether the judgment should be reversed for. error in a single instruction, such instruction should be read in connection with all the instructions in the case. Noble v. Blount, 77 Mo. 235; Schooler v. Schooler, 18 Mo. App. 69. For instructions are to be considered in their entirety and not as though each separate instruction was to embody the whole law in the case. McKeori v. Railroad, 43 Mo. 405; Smith v. Oulligan, 74 Mo. 387; Garesche v. St. Vincents College, 76 Mo. 332; Easley v. Railroad, 113 Mo. 236; Burdoine v. Trenton, 116 Mo. 358; Meade v. Railroad, 68 Mo. App. 92.
   GANTT, P. J.

The defendant was indicted in the circuit court of Cooper county for assault with malice aforethought to till Thomas A. Harris. He was duly arraigned, tried and convicted of a felonious assault without malice aforethought and his punishment assessed by a fine of $383. Erom that conviction he appeals.

The evidence tended to prove these facts.

All the parties lived in the neighborhood of Lamine Station in Cooper county. On the day of the difficulty the defendant had been to Boonville on business and returned to Lamine on the afternoon train. About the time he alighted from the train the prosecuting witness and his brother, Sterling Harris, crossed the track near the station and went to a woodyard near by and got a load of stove-wood. After loading their wagon they went back across the track to the business portion of the village, Thomas Harris riding and driving, and Sterling following walking behind and near the wagon. Defendant after his arrival started away from the station and then returned, he says to see about paying the freight on some timothy seed. On the part of the State the testimony tended to prove that the defendant saw Thomas and Sterling Harris as they went for the wood and walked back and forth from the station to the Swigglis store, north of the track, with his right hand in his overcoat pocket, and one witness testified she saw him take his knife out of his pants’ pocket and then replace it in the,same pocket.

As Thomas and Sterling Harris returned with the wood, they passed the defendant, on the opposite side of the street from him, whereupon the defendant called to Sterling Harris to come over, that he wanted to see him, to which Sterling replied, according to the State’s evidence, that he didn’t have time; that be didn’t want to see bim, bnt if be wanted to see bim come over to bis side of tbe street. Defendant went over and when be came to Sterling tbe latter told bim be could talk to Tom and left and went into tbe postoffice. Some say be told defendant to go to bell.

Tbe State’s witnesses say defendant cursed both Tom and Sterling Harris. After Sterling went into tbe postoffice, Tbomas also went in. In a few moments Tbomas came out and as defendant was walking toward bim, gesticulating and swearing, Tbomas ran to bis wagon and seizing two pieces of tbe stove wood, threw one at defendant. According to some of tbe evidence tbe stick struck defendant on tbe side of tbe head, making a gash, while others testified it.didn’t bit bim at all. "When the stick was thrown, Tbomas Harris and defendant each made a rush at tbe other, but defendant’s son caught Tbomas Harris and held bim and Sterling Harris caught defendant, but defendant got close enough to cut at Tbomas Harris and cut bis clothing with bis pocket knife. Tbe parties were separated and no further injuries were committed.

Tbe evidence disclosed that there was a feeling of enmity existing between tbe parties in regard to reports circulated about a member of defendant’s family. There was evidence also that defendant called to bis son to bold Tbomas Harris and be defendant would cut bis heart out.

The court gave tbe usual instructions on tbe presumption of innocence, reasonable doubt, credibility of witnesses, tbe several degrees of punishment, and then tbe following which were objected to by defendant:

“8. If you find that tbe defendant voluntarily brought on the difficulty with Tom Harris then in law be wás tbe aggressor, and be can not be acquitted on tbe ground of self-defense, no matter bow great or bow imminent bis peril may have become during tbe progress of such difficulty.
“9. Tbe court instructs tbe jury that altbougb they may believe from tbe evidence tbat tbe defendant at tbe time of tbe difficulty between bimself and tbe prosecuting witness, Tom Harris, used violent and abusive language toward said Harris yet no words however grievous would justify said Harris in assaulting and beating tbe defendant or in doing bim great personal injury, and if tbe jury believe tbat said Harris upon tbe provocation of words. alone' assaulted tbe defendant, and was about to do tbe defendant great personal injury or bodily barm, then tbe said Harris was tbe aggressor (unless defendant voluntarily brought on a difficulty with said Tom Harris, as defined in instruction numbered 8) and tbe defendant bad tbe right to repel force by force and use whatever force was necessary to prevent said Harris from doing bim great personal injury, altbougb tbe weapon used was a pocket knife, and if tbe jury so believe they should acquit tbe defendant.
“10. Tbe jury are instructed tbat if they shall believe from tbe evidence tbat tbe prosecuting witness Tom Harris in tbe absence of an attempt on tbe part of tbe defendant to first assault bim, made an assault upon the defendant, and was about to do tbe defendant great bodily barm, then tbe defendant (unless he voluntarily brought on tbe difficulty as defined in instruction numbered 8), bad tbe right to defend bimself against said assault using only such force and means as might seem to a man of ordinary judgment to be necessary for tbe purpose under tbe circumstances, and in such case it would make no difference tbat said Harris believed tbat tbe defendant was about to assault bim unless under tbe evidence it shall appear tbat such was in fact tbe intention of tbe defendant and tbat such intention was about to be carried into immediate execution.
“11. Tbe court instructs tbe jury tbat. if they believe from tbe evidence tbat when witness Thomas Harris came out of the store tbe defendant began to curse and abuse bim; that be was gesticulating and motioning with bis left band, and that bis right band was in bis pocket, and that as soon as Harris appeared defendant approached in an angry and threatening manner, then Thomas Harris bad tbe right to get a stick of wood or any other weapon and use tbe same in tbe. defense of bis person.”

Tbe court refused to give to tbe jury tbe following instructions asked by defendant:

“1. Tbe court instructs tbe jury that although they may find from tbe evidence that defendant sought or voluntarily entered into a quarrel with tbe prosecuting witness Tom Harris, yet, unless they shall further find from tbe evidence that be made an assault upon bim, then tbe said Harris bad no legal right to assault tbe defendant and if tbe jury shall find from .the evidence that said Harris did, without legal right so make an assault upon tbe defendant and was about to do tbe defendant great bodily barm, then tbe defendant had a right to repel said assault by force and to use whatever force was necessary to prevent said Harris from doing him great bodily barm, although tbe weapon used was a deadly weapon; and if tbe jury shall so believe, they will find tbe defendant not guilty.
“2. Tbe prosecuting witness Tom Harris bad no right to assault tbe defendant with a club merely because tbe defendant was using threatening and insulting language towards bim, nor unless tbe conduct of tbe defendant at tbe time, considered in connection with what be said, was such that tbe said Harris bad good reason to believe and did believe that it was necessary for bim to strike tbe defendant in order to protect himself from an assault by tbe defendant then about to be made upon bim.
“3. If tbe jury shall find from tbe evidence that the prosecuting witness Tom Harris made tbe first assault without the right to do go as explained in these instructions, and that the defendant had good reason to believe, and did believe, that the said Harris was about to do him some great bodily harm, then the defendant had the right to meet such assault by the use of such force and means as were reasonable and necessary to protect himself from such assault, and if the jury shall believe from the evidence that the defendant acted in self-defense, as herein explained, they will find him not guilty.”

I. Counsel for defendant ask a reversal on account of erroneous instructions given by the court and for the refusal to give correct instructions asked by defendant.

The ninth and tenth instructions, otherwise correct statements of the law, were rendered erroneous by the insertion into each of the clauses “unless defendant voluntarily brought- on a difficulty with said Tom Harris” as defined in instruction numbered 8.

Hpon the facts assumed, Harris had no lawful provocation to assault defendant and if he did under those circumstances then defendant had a right to defend himself, and use such force as was reasonably necessary to prevent said Harris from doing him great bodily harm, and the interpolated clause denied this right. Unless defendant sought and brought on the difficulty with a design to wreak his malice he did not forfeit his right of self-defense. "Whether those conditions existed, the jury were to find from the evidence. [State v. Rapp, 142 Mo. 443.] Eor the same reason instruction numbered 8 is erroneous.

Instruction numbered 11 is erroneous because it is a comment on the evidence.

The court erred in refusing the defendant’s three instructions. They correctly defined defendant’s rights under the evidence.

There was no error in failing to instruct on common assault. Defendant was either entitled to an acquital because he acted.in self-defense or he was guilty of a higher grade of crime than a common assault.

When a deadly weapon is used in making an assault upon a person, the law, in the absence of countervailing testimony or circumstances, presumes malice and that he intended the natural consequences of his act. [State v. Musick, 101 Mo. 260.]

The judgment is reversed and the cause remanded for a new trial.

Sherwood and Burgess, JJ., concur.  