Lead Opinion
I.
The instruction given by the criminal court was a very clear and satisfactory exposition of the law relating to murder in the first degree, but the question arises upon the facts disclosed by this record, whether an instruction should not also have been given touching a lower grade of homicide. The testimony of the witnesses, other than the defendant himself, showed very clearly a case of deliberate murder. But under our law, a defendant in a criminal cause is a competent witness, and his
II.
In the present instance, the defendant had testified to a state of facts, which, if true, clearly exonerated him from the charge of murder in the first degree, and fixed his offense at a lower grade of homicide; and it belongs not to the judicial province to assume that his testimony is either improbable or untrue. So far as concerned the fixing of a basis for an instruction for such lower grade of crime, his testimony was to be taken as true, as much so as if testified by the most reliable and veracious witness, neither biased by interest nor prompted by fear of punishment. If it be said that this view of the law will be taken advantage of by those who are put on trial for their lives, it is only necessary to say that a witness in a criminal cause is competent, under the law, to testify to all the facts in issue; that the duty of the court to properly instruct the jury remains as heretofore, and that considerations of the inconveniences resulting from those accused being permitted to testify in their own behalf, are considerations appropriately addressed not to those who enforce, but to those who make the law. Had any other witness than the defendant himself testified that the killing was accidental, and had the testimony of such witness been at variance with that of every other witness in the case, no one could doubt the impropriety of refusing an instruction based upon the testimony of such witness. If such refusal would
III.
It is a matter of no moment whether the defendant asked for the correct instruction or not; it is the duty of the trial court, in criminal causes, as we have repeatedly ruled, to give correct instructions covering the whole law arising on the facts, whether such instructions be asked or not, and it was long ago decided by this court that where, as here, the lower court undertakes to give instructions of its own accord to the jury in a criminal case, such instructions must be correct. Couley v. State, 12 Mo. 462. Erom these considerations, we cannot do otherwise than to hold the failure of the trial court to give an instruction as to a lower grade of homicide erroneous, and, therefore, reverse the judgment and remand the cause.
Dissenting Opinion
Dissenting, — Whether error was or not committed by the trial court in not instructing the jury as to some lower grade of homicide than murder in the first degree, was a matter of exception, and as the attention of the trial court was not pointedly and specifically called to the alleged error either in the motion for new trial or in arrest of judgment, it cannot be raised in this court for the first time, and we have no power to reverse a judgment in a matter of alleged error not excepted to-in the trial court, and to which the attention of said court was not called. Eor this reason I do not concur in reversing the judgment.