State v. Totman

Defendant was indicted, tried and convicted in the circuit court for an assault and battery on the person of one McIntyre. It appears that McIntyre and one Price were engaged in a fight in a meat shop at Plattsburg, that McIntyre seized a long butcher knife belonging to the shop, the two assailants clinched and backing over a fish box in the room, both fell to the floor McIntyre on top of Price; and while in that situation, McIntyre still holding to the butcher knife and about to cut Price, the defendant, who was present, struck McIntyre with the handle of a pitchfork and with such force that he was unable to use the knife on Price. Totman defended on the ground t]\at he struck McIntyre in order to prevent the latter from killing Price or doing him great bodily harm.

*127Assault and battery: defense of another. Among other instructions the court of its own motion gave the following: “The jury are instructed that before they can acquit the defendant on the ground that he struck the prosecuting witness, H. 33. McIntyre, for the . . . . - PurPose preventing the said McIntyre from killing one Stuart Trice, or doing him some great bodily harm, they must find and believe from the evidence that the danger to said Price was imminent and impending, and that the defendant used no more or greater force than was reasonably necessary under the facts and circumstances in evidence, and that he struck the prosecuting witness for no other purpose than to protect said Price from death or other great bodily harm.”

Criminal law: self-defense of third party. The giving of this instruction was error. The question" was not what am,ount of force was in fact requisite _pr necessary t° prevent the threatened killing or serious injury of Price, but what did Totman- at the time and under the circumstances have reason to believe was necessary. . He had the right to act on appearances • and' washot bound to act at his peril and to correctly determine or measure the force necessary to the emergency. In the language of the supreme court the defendant, under the circumstances, was not required “to nicely guage the proper quantum of force necessary.” Morgan v. Durfee, 69 Mo. 477; State v. Palmer, 88 Mo. 568; State v. Hickam, 95 Mo. 322; State v. Rose, 142 Mo. loc. cit. 427, 428.

The law, too, will not only justify the defendant in protecting his own person, but will also justify him in using such force as may seem reasons blynecessary to prevent the killing or maiming of another person. State v. Reed, 137 Mo. 125, 138. “The general doctrine is said to be, that whatever one may do for himself, he may do for another.” State v. Foley, 12 Mo. App. 431.

The judgment must be reversed and cause remanded.