
    THE STATE v. GARRETT, Appellant.
    Division Two,
    December 2, 1902.
    Self-Defense: BRINGING ON bd’jtcijlty. One may be entitled to acquittal on the ground of self-defense, though he brought on the dif-: ficulty, it not having been with felonious intent.
    Appeal from Cooper Circuit Court. — Hon. Jas. E. Hazell, Judge.
    REVERSED AND REMANDED.
    
      John Cosgrove for appellant.
    Instruction 9, given on part of the State, is erroneous. This instruction, in effect, told the jury that if defendant by any acts, that is, by the use of approbrious or insulting language toward the witness, Harris, brought on the difficulty, if assaulted by Harris, he was deprived of the right of self-defense. In a word the instruction told the jury that insulting, profane and approbrious language authorized Harris to assault the defendant, and that defendant had no legal right or authority to defend himself. The law is otherwise. State v. Gamble, 119 Mo. 427.
    
      Edward C. Groin, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General for the State.
    Instruction 9 is erroneous because it does not require the jury to find that the defendant entered into the difficulty with an evil intent, but simply states that if the jury found that the defendant willfully entered into the difficulty, or by any willful act of his brought on the difficulty mentioned in the evidence, then he can not be acquitted on the grounds of self-defense. Guided "by the controlling decisions npon this proposition, this case must be reversed.
   SHERWOOD, P. J.

The defendant, a negro, comes to this court on appeal from the Cooper Circuit Court, where, upon an information charging him with assault with intent to kill one Wm. A. Harris, by shooting at him with a pistol, he was found guilty, his punishment assessed at three years in the .penitentiary and judgment went on the verdict. The trouble in this cause arose out of the following circumstances:

Wm. A. Harris was the owner of a livery stable in Boonville, and hired a team of horses and a buggy to one John Drew; a negro, who wanted to drive out into the country. Drew, the ho'rses having been, hitched to the buggy, drove it away from the livery stable. A few minutes thereafter, Hands saw his team coming up the street with two negro boys, defendant and Roy Field, in it, who were driving. Drew, it seems, had at first taken defendant into the buggy with him, and then when Drew got out of the buggy and went into Joe Stephens’s drugstore, Roy Field got into the buggy, and then he and defendant drove off down street, and in a few moments returned and stopped again in front of Stephens’s drugstore, when Harris, accosting defendant, demanded to know what defendant was doing with that team, and ordered him to get out of the buggy. This order was repeated three or four times, when defendant told Plarris (as defendant states) that “John was in Mr. Stephens’s drugstore,” and he, defendant didn’t know that he had to get out of the buggy, or something like that, when defendant after being ordered to get out, as above stated, finally said (so' Harris states): “I can get out of your damn buggy; I don’t give a damn for you or your old buggy either; I’ll fix you,’-’ and began to crawl out of the buggy. Harris then took the buggy whip out of the hand of the other boy, who was driving, or from the socket, and struck defendant with the loaded end of, the whip just as he was in the act of getting out of the buggy, or just as he got out, Harris could not remember which. After defendant got ont of tbe buggy and stepped back ten or fifteen feet be drew bis pistol and shot. Harris did not know whether defendant bad got on tbe ground before be struck bim, or whether be struck bim while tbe latter was in tbe buggy. On bis cross-examination Harris, in substance, said that be was excited and did not have a very clear conception of tbe things that transpired; but be said be struck defendant on tbe face and be fell or “kind o’ dropped someway” from tbe force of tbe blow; that be struck defendant across tbe face with tbe loaded end of tbe whip, and defendant fell on tbe opposite side of tbe buggy from Harris.

There was nothing in tbe testimony already stated to show that defendant either drew or fired bis pistol until after be was struck with tbe whip; and defendant’s own testimony shows that be did not and that at tbe time be was struck the blow knocked out one of bis teeth, which tooth be exhibited on tbe stand when testifying. He further testified that when be fired Harris bad tbe whip in bis bands still and was attempting to get at bim.

Among other instructions, tbe court, on behalf of tbe State, gave this one:

“9. Tbe court instructs tbe jury that if tbe witness, Harris, owned tbe buggy and team mentioned in evidence, and hired tbe same to one John Drew, and afterwards tbe said John Drew, without the knowledge or consent of said Harris, placed said buggy and team in tbe possession of tbe defendant, then said Harris bad tbe right to demand and take possession thereof from tbe defendant, and if you find from tbe evidence that said Harris did, in a peaceable manner, attempt to take possession thereof, and that thereupon tbe defendant, by .any willful act of bis, brought on tbe difficulty mentioned in evidence, then be can not be acquitted in this case upon tbe ground of self-defense, however imminent bis peril may afterwards have become.”

This instruction was plainly erroneous under tbe rulings in Rapp’s Case, 142 Mo. 443; and Higgerson’s Case, 157 Mo. 395, in that they deny defendant tbe right of self-defense if he merely “brought on the difficulty, ” no matter whether he brought it on with a felonious purpose or not.

The above cases, as well as numerous others from Partlow’s Case (90 Mo. 608) down, assert the doctrine that absent a felonious intent in the first instance, a party is not placed beyond the pale of self-defense, even if he does “bring on the difficulty”' as with vexatious vagueness that loose term is applied.

The State confesses the error of this instruction, and well it might.

Judgment reversed and cause remanded.

All concur.  