*1 whiсh, made, Kansas, died there. argues, the insured because relator unnecessary question further We it this deem to consider in Thompson analyze are concerned we case. have stated As we only question conflict, look proceeding and we this opinion it does appellate opinion court’s facts. From the for the urged presented by appear point not was ever that the now relator Respondents Appeals. either to the Court of circuit court or to the say non- asserted opinion in their that its answer the defendant ground delay liability an assessment on that it is for vexatious liablé reason and for that company under laws of Missouri interest, from appears attorney far as penalty. for such Sо fees nonliability asserted ground was respondents’ opinion no other quoted ad have Appeals. the trial court or the Court of We respondents say subject. circuit opinion- that Since the in their on ground court did not sustain motion for new trial on the defendant’s thereby overruling A, of refusal of effect it on that point, rested, apneal. showing the burden of in such error refusal on Co., K. the defendant. C. Pub. Serv. [Smith (2d) 548, (10-16).] respond- It is evident from opinion they question disposed ents’ the refusal theory which, A appeared Instruction on same on as it to them record, from below, viz, the case had been tried —that ground delay exemption liability which from for vexatious claimed was that defendant company is an assessment and therefore exempt, whiсh claim could not be allowed in view of the further fact case was tried parties theory below both on the policy stipulated in suit premium old line or policy. Re- spondents question did not have before them and did not decide the Thompson question. involved case aor like We find their opinion no conflict with that nor with any other decision of this which court to our attention has been called. It is our con- clusion that quashed. our writ herein should be It is so ordered. CG., Westhues and Fitzsimmons, concur. PER foregoing opinion CURIAM:—The adopted Cooley, C., opinion judges All court. concur. Barbata, Appellant. 865. Paul February Two,
Division *2 appellant. Joseph Gatcmzaro for B. *3 and John W. General, Olliver W. Nolen McKittrielc, Attorney
!Boy Attorneys General, respondent. Hoffman, Jr., Assistant *4 Barbata, BOHLING-, Lillian murder of C. Paul for the indicted Salamoni, was, trial, first de- found of murder gree, appealed punishment judgment and from the thereon. The assessed was death. child, Appellant from wife a short distance resided with his and The family city the residence of St. Louis. the Salamoni Sam, Lucille, father, family Salamoni consisted of and the husband children; Angeline, Joe, mother, the wife and Lillian and and eighteen aged twenty, sixteen, respectively. the latter years January approximately homicide occurred three Por thereto, prior thirty-two years age, been appellant, about had family. received in far the Salamoni as a friend So home out, shows, appellant daughters as the evidence had not taken the parties daughters had met them аt and elsewhere. The worked Liggett Myers occasion, Thursday & Company, Tobacco and on one homicide, appellant before the came and had a brief conversa there Appellant’s tion Lillian. statement case states might “some of justify the evidence an inference that the mutual appellant admiration between Lillian' than was a little more However, usual. kept company young Lillian men and with other engaged to be married. This was known defendant and it, did not complaint, resent nor far did he make so as the evidence marriage shows.” Lillian proposal July, had received away. January appellant 6, 1933, and told keep On when the daughters mother work, came home from the husband playina-. in the house and Joe was out About five or five-ten o’clock p. appellant day of that came to the Salamoni home. The mother M., becoming appellant and father told Lillian that his attentions to were being man, and, by causing known reason of his a married were among undesirable comment They her him friends. told to leave left, and not appellant come back. The mother testified that stat ing, rejected “I never was from no house. This house is the first ’’ argument rejected I have ever been out of. far So as shown no heated words passed ever appellant between member of the family. Angeline Salamoni girls, Lillian, The two went minutes, Appellant basement of the home. returned about ten window, “Open it, saying: came to the basement and knocked on request complied the window.” Lillian with the “ (quoting appellant’s statement) from said: ‘I say have come to goodbye,’ and then shot her in side the left of the neck at the base thyroid. When he fired the shot at Lillian he immediate ly went girls into kitchen. Both ran up steps to the kitchen. *5 When they entered the kitchen standing by the defendant was pistol door, ice box near with his Salamoni, his hand. Sam father, door, lying was on the dead, floor near the and Joe Salamoni, Lillian, brother of lying was on the floor near table a in a the ice box and apparently dead. Lillian sat down cbair . the defendant. defendant then drew his
abont foot from The pistol again He then and shot her and she fell from the chair dead. Angeline for some pistol her, turned his and tried shoot but on fire; pistol at Mrs. pistol pointed reason the failed to then he again but fire. The her, and tried to shoot it failed to Salamoni gave in police station, left and then the room went to the defendant custody tragedy himself formation of the and surrendered into boy, days.later. died Joe, two law.” The signed reads: Appellant’s statement may full
“I, Barbata, Paul order that the truth age, of lawful following voluntary with- known, statement, make free and. immunity punishment, promise .reward,-being out threat or or against may say may I informed that what herein be used as evidence me, if prosecuting officers should so desire. p. visiting Salamoni, I M., 5:10 was home of Sam
“About this Lucille Cooper Salamoni, father, at Street. Sam and accusing they began mother, kitchen, were in and Salamoni, the Lili disgracing family by talking daughters, me of their their that, gone, girls’ happiness future was Angeline, I was everybody talking ‘hill’ it, on the was about and that the cause of it. got my
“I went I steel, then home where blue caliber automatic pistol and returned the Salamoni Cooper home at 2317 Street. through house; went the side entrance on the south side .1 washing girls two were clothes in the basement. The basement win- I open. through dow knelt down and fired a was shot basement I window and I hit Lili in I around think the shoulder. then went rear of I the house and entered the kitchen the father door. shot I Lili boy, shot the Joe. had come from basement and was against hollering, sitting leaning box; Angeline a chair ice on I don’t,’ went over into ‘don’t Paul then and fired anоther shot body. Lill’s shooting jammed way. gun I ran
“After the out the front on myself. I I ran me, family intended to kill the whole north leaving gun Cooper away, on Street after the house and threw the gave I myself up. and ran to the District Mounted where foregoing consisting page and “I. have read the statement of one entirety. signed page I and have been it is in its have this true I saw fit to opportunity to corrections or additions make n make.” guilty. The Upon arraignment, appellant entered a of not appellant issue, offered no main and such evidence on the sanity. A number as was in his behalf issue of his offered knowledge lay qualifying witnesses, after as to their *6 368 in experts, that, two testified actions, and medical appellant’s insane. was appellant оpinion,
their testimony appellant to the effect was State adduced rebuttal, the In specific issues, as material be facts, in so far will Other sane. opinion. set forth presented, we determine first of the contentions
I. In view entitled, facts, under the to an in was defendant or not whether degree. trial gave in The court the second on murder struction evidence that appel The uncontradicted .shows instruction. such an sane) deadly weapon, (if will the deceased with lant killed deliberately premeditatedly. is an fully, There entire absence just any provocation. lawful or the issue of evidence on [State Appellant Kotovsky, 74 l. c. offered evidence 251.] duty try sanity. Under its sworn the ease only issue of his on the law, precludеd uncontroverted facts and the under bringing other than that the from a verdict guilty degree, responsible or was to held of murder insanity. uniformly act It has been held for his reason of his issue made is murder in the first that where the submissible degree degree justified. an instruction on murder the second is not Among holding, theory willful, the cases so tried on the of a de premeditated killing, Nasello, liberate and are: (2d) (stating ruling 30 S. that l. W. such has been the fifty years); period Adams, of this court for a case) (a ; Paulsgrove, l. c. 19 S. W. banc State v. 27, stating l. c. 101 S. c. 204: “They (the l. jury) were bound either to find the defendant of murder acquit degree, ground the first or him on the reason of killing responsible was not for his act de ceased;” Tettaton, State v. 743, stating 379: killing “The degree was either murder in the first nothing, or and it would have uрon been error for the court to have instructed any degree other homicide;” State v. Holloway, stating, S. W. 734, 231: way “No half house exists in a case sort, of this first, between murder in the degree minor Defendant, crime. sane, if coolly 'could deliberate said mur ’;der insane, he could neither premeditate deliberate nor .;” . . State v. Bobbst, Mo. 214, Lewis, S. W. 80. As the sub- govern missible issues applicable the law to a we in hold an struction (although given) the second not within made; issues and the review the instant case will be so restricted. 1No. Instruction for the reason attacks Appellant II. “law “deliberately” in that it the words uses defines improperly it -(cid:127) “provocation.” with the word in connection “just” ful” “ ‘Deliberately’ means in a cool done instructed: trial brooded over or reflected not mean It blood. does state of kill, executed hour, it means an intent day week, a -a *7 design gratify a feel- a formed to in furtherance of
by-the defendant purpose, unlawful accomplish some other not ing revenge, or to -by passion, suddenly- aroused a violent some the influence under ’’ provocation. or just cause lawful or Warren, 843, v. 326 Mo. 33 case of State Appellant stresses insanity in Warren- case were (2d) The defenses S. W. 849) ; and, justifying an l. c. the evidence (326 Mo. and self-defense (l. degree 851), c. in the second on murder 855). degree (l. c. gave on first and second instructions grounds in defini other than for- error case was reversed on That “deliberation,” found the the words as the court use made of tion of However, “just been invited defendant. provocation” had 856) C., (326 defining; Mo. c. l. : “In states delibera Davis, ‘just’ ‘lawful’ not the words or should be tion, we do think develops provocation where evidence connection with -the used degree homicide, other than Thé degrees or first murder. several ‘just’ convey they find ‘lawful’ and to the must words killed, deliberately that defendant unless the acts of the deceased killing justifiable homicide, ‘just- or rendered the excusable Wilson, justification and v. ‘lawful’ denote excuse. State [See. 440, 448, 98 l. c. evi Mo. words “where the 985.]” degrees homicide, degree- develops or other than first dence- several expressly application murder” remarks cases exclude only degree first where the submissible issue is murder. State v. 98 W. 327 Wilson, 440, 985; Malone, Mo. l. c. 11 S. 451, State v. 1217, (2d) Mo. S. 786, 787, 39 W. l. c. 326 Sharpe, and State v. Mo. (2d) 75, (cited by 34 78 1063, S. W. l. c. appellant), likewise justifying facts degrees involved instructions on of homi different distinguishable cide are likewise from the instant case. That portion of (to-wit: the instruction Sharpe criticized case act”) accomplish “or some other unlawful was held harmless 329 Hershon, 490, State Mo. 469, l. 495, (2d) v. c. 45 S. 60, W. be cause required. more favorable to the defendant than law
Instructions similar to the one at in- approved issue have been cases where submissible issue was We murder. quote Bobbst, 269 214, State v. l. c. 190 225, Mo. S. 257:W. “The ‘deliberately’ court defined the word as ‘done in a cool state of engendered in a blood, passion just sudden lawful or some provocation’- cause of and further instructed the there tending no passion provocation.- show such or This 370 74 Ellis,
identical form was in the case of State v. of instruction 207, 220, Mo. stated the correct form to where there passion provocation. is no There evidence of such sudden bar. evidence of this kind the case at To the same effect are no 642, 647; l. v. Donnelly, Taylor, c. State Mo. 465, l. c. c. 395.” This David, and State v. l. ruling specifically approved parte Burgess, is Ex Hershon, S. W. l. State (reviewing “deliberately”). S. W. definition of the. also, 221; Ellis, State Jack [See, son, Tettaton, 354, l. c. There was no reversible error 743.] case. instruction under the submissible issues instant (the
III. general Instruction No. 3 -form instruction used insanity where interposed case), criminal as the sole defense in a material, so far as reads: informing paragraph interposed First is the as a defense. *8 stating
Nеxt, paragraph recognizes the the law such defense. paragraph beginning “Insanity the Next, physical is. a disease.” Then follows:
“Wherefore, they the court if instructs the believe and that find from that, killing charged the evidence at the time he the did perverted indictment, deranged, the the defendant and was so one or faculties, incapable more of mental to his and moral be of understanding, Salamoni, at the moment he killed Lillian that killing such wrong he, defendant, time, and that the at that was. incapable understanding killing of of that this act was a violation insane, of the if society, laws of God and the find that was so they guilty.” should find him not
Next, paragraph general insanity. partial on wrong.” right Next, paragraph “distinguishing on between Then follows: presumes every “The law person who' has reached years of to
discretion be of mind, sound and this presumption continues contrary until the shown. when, So that as in this case, insanity is,pleaded as a defense to a criminal charge, the fact the existence insanity of such at the time of the commission of the complained act of, you acquit can must, before ground, that by established your satisfaction, reasonable and the burden prov- ing this fact rests with the defendant.” Next, paragraph need not be by posi- established tive and proof. direct Then follows: ‘‘ presumes innocent, The law the defendant and the burden of proving and, him you rests with State, before should con- doubt. beyond a reasonable guilt must be established bisMm, vict verdict to a hand, the defendant to entitle On the other not, it, prove him requires law insanity, guilty by reason of reasonable your only to doubt, however, beyond a reasonable satisfaction. may this, although find you “From all it believe and follows that evidence, alleged, if, yet, killing
that the from the defendant did the it, that, you insane further find at he was such the time he did doing wrong, and condition of mind that know he was he did not act, then such comprehend did not character the nature and ought ac- killing you felonious, and was not in law malicious or say.” and, verdict, by so quit insanity, your ground him on the alleges er- Appellant's new trial motion for jury properly instruct roneous “for the that it fails to reason applicable insanity; it invades law as to the to defenses province placed lury; in issue facts existence of it assumes the confusing misleading, plea by guilty; it is the defendant’s of not ambiguous iury the other in connection when read to the court; lury assumes it instructions to the invading thereby province Salamoni, defendant killed Lillian - lury by de- placed in issue assuming facts the existence of ‘at the time phrase, guilty; fendant’s of not the use of the de- killing"charged indictment,’ ‘that he did the killing alleged,’ No. in said Instruction fendant did the guilty murder defendant, insane, were told that he was not with murder charged him degree, indictment since the only, rendered phrases degree the first and the use of the said erroneous, in Instruction particularly since said Instruction No. lury upon the first No. instructed the degree.” murder in the second complaint fa) assumes appellant’s the instruction As to *9 sanе, lury appellant, guilty in the is murder if tells the completely disregarding by the degree, first the instruction degree, pre the case court on murder the second we have held degree. fol sents no submissibie issue of It second Warren, 842, 33 W. lows that the eases of v. 326 Mo. S. State Jordan, 125; 64, 3, involving v. 268 W. sub- State Mo. S. degrees missibie issue of mur of homicide addition to here'; der, controlling are complaint, upon a sub- and this based missibie issue of murder the merit. degree, second is without
(b) Appellant contends the instruction assumes defendant com- mitted the charged. crime At the close of the evidence in trial the court the submissibie is-
sues, including defenses, are made. In the instant case these issues are narrow. The insanity. sole was defense The plea of in- by repeatedly this
sanity behalf a defendant has been held plea avoidance. be in a of confession and court to the nature of 4 W. 300, l. c. S. J., Pagels, 309, v. State Mo. Sherwood, 931, necessity, insanity itself, and “Indeed, plea said: avoidance, plea the courts plea a the nature of a of confession plea. differing such quantum to sustain a to the of evidence a bare (9 Ed.), plea Such is but Whart. Crim. Law sec. [1 61.] charged, part government’s ease; denial the act of a it admits act, accompanying intent avers there was no criminal (3 and, therefore, Crim. Proc. charged. Bish. denies crime [2 Ed.), wholly being sec. immaterial it is This 669.] point dying testimony discuss the Kohn’s declarations whether as to properly evidence, since those declarations reсeived to-wit, went fact, admitted homicide.” 239, 49 217, l. c. S. judge, The same 148 Mo. Soper, in State v. upon W. which case theory further “Under this said: tried, joined defend single the State issue between was, defense, joining of said, non; ant as above insanus vel such a avoidance; issue, plea such an is tantamount to a of confession confessed, guilt, homicide is of that homicide but the the crime denied; denied, and this reason that on is all that is for it stands to plea ground any pertinence no other would have Welsor, Pagels, 300; in it. v. relevance v. 92 Mo. State [State Among Wright, Mo. v. are: State other cases to like effect 570.]” 404, l. 1145; Lewis, 134 Mo. l. c. c. 35 W. Mo. S. State Stubblefield, 806; l. c. 337; v. Holloway, State 56 S.
Upholding a
against
like instruction
the attack that it assumes the
defendant did
billing
and that suсh error was not cured
proven
instructing
presumption
guilt
also
on the
of innocence until
beyond
doubt,
Holloway,
reasonable
this court in State v.
734,W.
said:
“The
telling
instruction in
kill
defendant did the
ing only
already
what
did
defendant had
done
in
doing
sanity; confessed the
itself,
of the act
then endeavored to
avoid,
guilt
Pagels,
and denied the
of it.
[State
309;
Welsor,
Soper,
therefore,
ssumption
killing,
The
239.]
that defendant did the
harm,
did defendant no
and was not at all
with another
inconsistent
which told
they
must find defendant
be
yond a
Guilty,
physical
reasonable doubt.
but not of act of
killing,
murder,
but of the crime of
sanity
existed.”
[Note:
“insanity”
word
appearing
line,
in 156
l. 4th
original opinion
reference to the
quota
found
“sanity,”
to be
tion being corrected here.]
*10
fact
as true the
“An
which аssumes
instruction is not erroneous
222;
Holloway,
v.
156 Mo.
which is admitted on the trial.
[State
Edwards,
449,
190 Mo.
Miller,
v.
State v.
Mo.
[State
312.]”
461,
submissive issue of murder the second assignment case, particular under we limit this discussion to case, 851, 852, 33 326 Mo. S. consideration. In the Warren contain instruction W. a similar the court had before it thp charged in ing act phrases: “At time committed the charged Deskin as John C. indictment” and “at the moment he killed against him,” instruction, criticizing said: the court etc. In judicially testify, nor did he “Defendant did not take the stand nor the testimonv It is true that admit that he shot killed Deskin. kill shoot that he did some of his tended show witnesses insanity. the defense of Deskin. Notwithstanding It is also true that he submitted circumstances, predicat instructions all of the these ing finding shot defendant a verdict a should have reciuired although, (State 64), killed 268 W. S. Deskin v. Jordan. evidence, necessary hold the in view it not deem we do сase well, Warren ground.” instruction erroneous Note on expressly Duestrow, disapproving refrains from approved stating: “It is said that this reading Duestrow, 39 S. 38 S. W. and the of that case not identical advises that instructions are against case charged words the Duestrow ‘as him’ are not found in “committed, again, phrase instruction.” And reference to charged:” set the crime form also follows the “This instruction Duestrow, forth in 39 W. however, In Duestrow predicated the verdicts were only.” read acquittal phrases must be That the light in casé evident, of their context is the Duestrow *11 others, 71, 72, 73) among
(137 following phrases, the indictment;” killing charged “At occur: the time he did the in the charged;” “at the “defend time of the commission of the homicide killing alleged;” ant did the commission “at time of the the wifе;” “that charged;” killing homicide “at the the time of of capacity distinguish right wrong, he had no to act as the from charged;” which he the of commission of “at the time the charged;” homicide;” crime “when he “that the committed the defendant, at case in criti the time of the homicide.” The Warren cizing instruction, the it can to relate to this so far be said as Jordan, issue, we cases, supra. As Meininger cites the and Mills 690), (306 Meininger (306 the Mo. l. c. 22), read Jordan Mo. l. c. (272 (268 80) 534) Burns Mills Mo. l. c. and also the cases, they flight flight involved to the effect instructions in con defendant is a taken into consideration circumstance to be jury nection with if find and evidence, all other facts in the the from the commission defendant, believe the evidence that the “after ” . alleged- Thеy properly the crime . . indictment, in the fled. such held in each the crime was instructions erroneous as instance denied and the main controverted instruction as true the assumed flight assuming fact. An of the offense instruction the commission charged, commission, materially where defendant denies dif its readily assuming distinguishable ferent from an instruction an and, necessity, act established the uneontradicted evidence very plea confessed the interposes. the defendant submissible insanity issues in the Warren ease embraced self-defense and degree degree: the first second as well murder in -the phrases and the they were held the the erroneous because told defendant, if guilty, degree, first of murder the thus directing ignore to set aside evidence and instruc degree on a interpret tions lesser homicide. of felonious We cited) comment Warren (in case accord with cases therein go no further than to state that it the rule is error for instruc fact; tion assume as true a controverted had the ad for, judicated issue, some, least, instant at of the earlier decisions involving only insanity murder and the sole defense of would have been understood, mentioned and overruled. Thus said comment does not rule a case wherein the sole defense is only crime, any, degree; murder in the first a reading Duestrow case light in the of the comment in the Warren case fortifies this (296 conclusion. 436) The Hersh case S. W. l. in volved usual telling says that what defendant against himself presumes although “law true,” etc., to be evidence tended to making show the defendant denied admis sions. The instruction assuming considered erroneous as controverted fact that defendant made a confession. cases These from instant case in- distinguishable each cleaiiy are uncontradicted; denied fact assumed as tbe defendant stance insanity, whereas, necessity sole in the instant purpose plea, and, under -the relevant act, confesses his-insanity) legally held not (by seeks to reason act. responsible for the 3, viz.: paragraph the last of Instruction No. portion of That ’
‘‘ ’ killing alleged, when viewed' That the defendant did *12 light context, assumes no fact but tells the that even of its killing- may they nevertheless though they find defendant did the acquit if further they should find insane at time. 1‘ Nip. you 3 told the before should convict Instruction guilt beyond him must be established a reasonable (defendant), gave doubt,” presumption the usual instructions on doubt, reasonable etc. innocence, question practically copy The instruction in a literal similar 92 4 Pagels, 314, 316, instructions in State v. Mo. c. 300, 315, l. 931, 1887, S. Schaefer, W. decided 116 96, and State v. Mo. l. c. 109, 22 111, 447, S. W. in 1893. decided The Schaefer 116 447, 22 112, foregoing charge Mo. l. c. W. every states: “The S. particular, essential when the defense insanity, -approved was' has been by and followed this court since the ease of v. State, Baldwin 12 ’’ Mo. The Baldwin case was decided in 1848. The instruc by by learning tion has been sanctioned use, tested of eminent jurists, attacks, including and withstood such as are now under consideration, many Although for decades. might the instruction regards be appropriate assignment couched in more terms as -now under we phrases question, conclude that the consideration, when light viewed in the their context, in so far as fact as go thereby, sumed no further than to act assume -the confessed insanity and established in this case the uncontradicted testimony rights eyewitnesses, were not prejudiced thereby.
(c) Appellant complains in his brief also of the instruction ground unlawfully on the places it appel burden proving insanity upon defendant, ignoring lant’s the fact that while the offering burden of may evidence' during shift criminal trial, proof burden of throughout trial, rests the State the entire 327 1217, (2d) 786; cites State v. Mo. 39 Malone, S. W. State v. 169 Hardelein, 70 579, 130; S. W. 66 State v. Wingo, 181; v. Schaefer, 447; State Mo. l. 22 116 S. W. and State v. 95 322, Hickman, 252. W. carefully
We have appellant’s read for' trial, motion new the’ whole thereof with reference being to this hereinbefore set forth, incorporated any‘reference and fail to find therein to this assignment. trial court was not called upon to review its ac- 3735', Section Revised Statutes under respect, in this
tion grounds or trial causes new must specific requiring that the disregard particularity, complaint we and with detail forth in set Harlow, 327 Mo. brief. appellant’s made [State 421; (2d) 419, Nichols, 327 Mo. l. c. State l. c. Gillman, 777, 779; (2d) State v. S. W. l. c. ruling (2d) 146, Such has been the S. W. 313, 314, l. c. 149.] analogous issues other first 3735 on Section under l. c. Carroll, this court. cases before [See (2d) 863, Copeland, 564, 62 S. (2d) (1-3); Goodwin, S. W. (1, 2).] IY. No. reads: Instruction actually find the defеndant committed the act you “If against you further find him not on the charged him, and ground thereof, he was insane at the time of the commission you your verdict, you will state whether will so state also entirely permanently recovered from such the defendant has insanity. question sanity defendant, you
“On *13 if itself, will consider all the evidence offered in the the act you committed, attending circumstances, life, find it was and the defendant, the habits as well his capaci- and conduct of the as mental ty any, or if perverseness, up his birth present from to the time, defendant was to determine whether or not the of sound or unsound you mind charged, at the time of the commission of the offense if you irresponsible it committed. If find was insane find was any mind, from or explained diseаse disorder of as in these instruc- tions, act, it, when he if he you committed the did commit then will guilty. you But, find him not find he did act commit the insane, and at the time of the commission thereof he was not responsible act, explained instructions, his as in you these then guilty, though you may will him find even find that he has become insane since the commission of the act charged, that he is now insane.”
Appellant, trial, his motion for new states this instruction is erroneous “for the reason it jury fails to prop- instruct the erly to the law applicable of insanity; to defenses it invades the province jury; it assumes the placed existence facts in issue by guilty; defendant’s misleading, confusing it is ambiguous jury to the when read in connection with the other jury by instructions court; by phrases the use of actually ‘thаt defendant charged against him,’ committed the act and ‘at the time charged,’ commission offense in said Instruction No. were told that defendant, if he was not degree, the indictment first since in the murder guilty of insane, was use of only, and the degree him in the first murder charged with er- particularly 4No. said Instruction rendered phrases said the court instructed No. in Instruction since roneous, second upon degree and murder in the upon degree.” . ( n ) As we far as it treats assignment, so of error read this in. upon is founded it submissible issue particularity, with detail and being lodged in the ease. This sub- of murder the second points III, under I and discussed ject matter has been subdivision may point III, had to reference be also subdivision passing, a. In any controverted fact. "We assumption of adhere to the b, for the rulings made. heretofore also.alleges
(b) Appellant in his brief instruction is portions in that it details the evidence which it directs erroneous insanity, of defendant’s to consider'on issues but dwarfs parts essential importance of other of the evidence on that issue any Appellant’s assignment thereof. by omitting mention new trial nowhere sets forth detail and particular motion for assigned. ground ity wherein the instruction is erroneous this and the trial court had no it. brief, such issue before Our point e, here; III, applicable under observations subdivision are assignment. disregard the we (briefly)
Y. Appellant contends record is devoid sanity evidence of his at the substantial time of the com mission of the offense. evidence, lay adduced from a
Appellant’s number of witnesses experts, amply support and two medical sufficient to a verdict insanity. However, reason of of not the State adduced taking appellant’s evidence from the officer statement soon after opinion appellant that he was of the homicide sane at officer, who time. Another had known for sometime and quite him frequently, had to see and talk to that, occasion testified *14 A appellant in his was sane. opinion, friend of the deceased tes- appellant ought when “lay young tified that she told he to off the appellant replied that girls,” absolutely until she him, shunned he past. appellant’s he did in the witnesses, would do as One who “kid,” n appellant since a testified, had known he was on cross- examination, appellant he had seen around “hill” ap- and that pellant appeared normal to him. Other facts were evidence as might appellant’s to actions. Some of these have indicated to jury control, appellant high was hard to or that temper, he had a rather was of mind. appellant "than that he unsound Had possessed strong, mind, likely a well-balanced would have controlled his say passions; but we cannot that'the court should taken have 378 acquittal. every Not a verdict directed from the case through responsibility criminal refuge from find a is to mind weak as mentality which is so defective Only that insanity. plea of commission, criminal at the time of actor, prevent to of the act and and character the nature comprehending from act, doing wrong responsibility from law. relieves knowing he from defendant committed is that the uncontradicted Here, the the facts as detailed signed corroborates statement His
homicide. rational narrative of the events. to be a appears It eyewitnesses. sanity appellant’s an issue on presented the evidence think We weight jury, and the required submit to the court was which jury. among others, was for the that evidence [See, value 1102; 115 seq., 542 et S. W. 532, 216 l. c. Mo. Barker, v. State 943; (2d) 940, 33 l. c. 992, 326 S. W. Caviness, Mo. State v. 480. And, arguendo, 239 S. W. 296, 293 l. c. Mo. Tarwater, 273, v. passing, 172 S. W. In c. 339, 354, l. Morris, State v. 603.] contention any that the nothing in case to sustain we find’ penalty imposed. unless it be the swayed passion prejudice deceased and committed the the home of the went to appellant The punishment has been held circumstances the such homicide. Under 729, 733; 253 l. c. State v. Long, S. W. v. not excessive. [State (2d) 868; 62 c. 863, c. S. W. l. 568, l. Carroll, (2d) 746, l. c. The Copeland, v. 752.] appellant’s court not sustained discloses that transcript objection attorney the State’s at remarks of the close to certain farther rebuttal, but went and instructed the of the State’s Nothing further Under cir disregard them. occurred.- such successfully may predicate prejudicial error cumstances Painter, l. c. S. W. on the occurrence. [State 1199, l. (2d) (2d) 79; State v. S. W. Baublits, 16.] assignments foregoing presented disposes appellant’s brief. appellant’s issues in motion for new trial:
YI. Other assigns error per The motion the refusal of the court State, Angeline mit two for the Lucille Salamoni and witnesses (mother respectively) Salamoni and sister of deceased, Russo to' give opinion chief, their while on the stand for the State on cross- sanity. examination, as to defendant’s The exclusion of the testi mony accompanied by assignment proof was not an offer of and the (State Carey, us l. c. is not before S. W. 25; State Walker (Mo.), S. W. l. c. Blakely (2d) 1020, (Mo.), 1023); as there adjudge is an absence of sufficient basis entire which to (State Roberts, error prejudicial question 991). the time the appellant’s At asked,
379 adduced It was after guilty.” “not plea stood guilty by dis reason of not the that of such evidence circumstances, admissibility Under the closed. has be within the dis in chief beеn held to State’s case during the 37 91, Mo. l. c. Lewis, 84, v. 136 triál court. cretion of [State S. W. 806.] questions motion trial for new the admissibility of evi sanity by Officer fail appellant’s
dence on Forthaus. We to find exception request to strike this objection, particular testimony It is before this court for the record. review. State [See 150 562, S. 558, l. c. W. It well v. is Wana, settled 1065.] giving opinion that lay witness, party that a a is insane, must opinion upon facts which is based; detail the he expresses sane, required that opinion is he is not party to detail the upon This rule is rest facts. said to obvious reason an opin upon is is abnormal person ion a insane based unnatural and and acts conduct; whereas, opinion that he is sane is based the ab v. Liolios, acts or conduct. 285 1, 13, sence such Mo. l. c. [State cited; Barringer 941, 225 Kaechelen S. and cases v. (Mo.), W. 19 1037 (2d) S. W. l. and cases 1033, (8), c. cited.] corpus city Proof of delicti and venue.“in St. Louis and Missouri,” properly sufficiently were State of made. jury The verdict of the cause, above entitled —“We
find degree, the defendant as charged; punishment death, indictment he stands assess the at Winter, Frank (Mo.), S. Foreman —” sufficient. v. Jackson [State 253 316 734, 737; Adams, 157, S. W. l. c. v. State l. c. 289 164, 948; S. State Baublits, 1199, 1207, W. l. c. S. W. (2d) Long 16; 729, State S. W. c. (Mo.), l. 733.] Assignments (1) the motion trial to the new effect against weight (State that the verdict is the evidence v. Maness (2d) 628, 629; Francis, S. W. c. (Mo.), l. State v. (2d) 554; l. l. Goodwin, c. c. State v. (2d) 960; l. c. Carroll, State v. Vigus (2d) S. 867; (Mo.), l. W. State v. (2d)
66 W.
856;
S.
(cid:127)380 (5) jury fails to instruct the properly that it the effect insanity (State Maness, to defenses applicable law the as to (2d) 146); S. W. Gillman, supra; confusing ambiguous to the misleading, it' is (6) that with the other instructions to the in connection read when Sinovich, 329 Copeland, supra; (State by court the (2d) 877, 880); (7) it in S. W. (8) jury; and exist that it assumes the province of vades the by plea guilty, in issue defendant’s not placed of facts
ence general setting particulаrity forth in detail being not (cid:127) alleged grounds error, insufficient or causes of the are specific anything for preserve review. in sub- shows the indictment be sufficient proper The record form; arraignment, guilty, approved stance and swearing impaneling presence appellant, indictment, verdict, trial upon return jury, overruling trial, according filing and motion new judgment verdict, allocution, and sentence accord with regular appeal, the allowance of an all and sufficient. judgment affirmed;
It follows the should be and is and that punishment imposed pronounced and the sentence Cooley the trial verdict be carried into effect. Westhues, OC., concur. adopt- foregoing opinion by BohliNG, C., is
PEE CUEIAMThe judges court. All the concur. opinion ed Holloway et al., Appellants. Sarah P. Millard C. et Burke al. February Banc, 7, 1935.
Court en