State v. Bird
228 S.W. 751
Mo.
1921
Check Treatment
TTIGrBEE, P. J.

The Prosecuting Attorney of Jackson County, on December 8, 1919, filed an information in the criminal court of that county, charging the defendant with the crime of murder in the first degree. It is alleged that on October 28, 1919, the defendant shot one Fred Reed and that Reed died as a result thereof on November 6th following,. The defendant was formally arraigned and entéred a plea of not guilty on the day the information was filed. The cause was tried at the February term, 1920. The court submitted the case on instructions defining murder in the first and second degrees, and manslaughter in the third and fourth degrees. The jury found the defendant guilty of manslaughter in the third degree and assessed his punishment at imprisonment in the penitentiary for three years. Having-been séntenced accordingly, the defendant appealed to this court.

In appellant’s brief, counsel assign as error the giving of instructions 5 and 6 by the court on its own motion on manslaughter in the third and fourth de *597 grees; that the jury found the defendant guilty of a crime unknown to the law; and that the court erred in overruling the demurrer to the evidence, and the motions for new trial and in arrest.

Information. T. It is said that the information is vagu~ and in-deftnite, but no flaw is found or specific defect pointed out by counsel in the motions, briefs or argument. We think the information distinctly charges the defendant with the crime of murder in the first degree, and conforms to all the standards of good pleading.

All the Law. II. The court gave 19 instructions for the State on its own motion. They are unusually clear, definite and comprehensive, covering every phase of the law applicable to the case. Counsel, in the motion for new trial, brief and arglBnellt, fail to specify a single vice in the instructions. The court also gave some instructions for the defendant, and modi-fled and refused others covered by those given. No error has be~n indicated in this respect. They also requested the court to give further instructions covering every phase of the law involved in the controversy and assign the failure to do this as error. They do not indicate in the motion the specific point of law on which the court failed to instruct, nor do they do so in their brief or assignment of errors. This contei~tion, therefore, cannot be considered. [State v. Gaultney, 242 Mo. 388; 16 C. J. 1055, sec. 2497.]

Argument to Jury. TIT. Oomplaint is also made in the motion for new trial of certain alleged prejudicial remarks of the prose-outing attorney in his argument to the jury, but as they are not preserved in the bill of excep~ lions they cannot be considered. They cannot be brought to our attention by affidavits and counter affidavits as was attempted in this case.

*598 Manslaugter. IV. Counsel for appellant in their brief complain of the instructions on manslaughter. They correctly define the offenses of manslaughter in the third and fourth degrees as those offenses were defined in the Revised Statutes of 1909, and need not he set out ip^g contention is that the Act approved May 27, 1919 (Laws 1919, p. 256; Secs. 3236 to 3242, R. S. 1919) abolished all degrees of manslaughter, and that said act, having no emergency clause, became operative ninety days after adjournment of that session, that is, on August 7, 1919, as provided in Section 7062, R. S. 1919. The Attorney-General, however, has, suggested that the act referred to, having been passed at a revising session of the Legislature, became effective November 1, 1919, as provided by Section 7095, Revised Statutes 1919, and, hence, the law of 1909 was in force at the date of the alleged offense and the trial of the defendant was properly had under that law, even though repealed at the time of the trial. [Sec. 7064, R. S. 1919; Sec. 8063, R. S. 1909; State v. Lewis, 273 Mo. 518, l. c. 535.]

The Act of May 27, 1919, abolishing all the degrees of manslaughter and fixing the punishment (Sec. 3245) is an original act and not a revision. There is an apparent conflict between Sections 7062 and 7095, Revised Statutes 1919, as to the time when an act passed at a revising session takes effect. This identical question was thoroughly considered by this Division in State v. Schenk, 238 Mo. 429. According to the ruling in that case the act in question, being an original act having no emergency clause, became .effective ninety days after the adjournment of the session, that is, on August 7, 1919. [See also State v. Anderson, 252 Mo. 83.]

The court should not have given instructions on manslaughter in the third and fourth degrees, but should have instructed on manslaughter generally as provided in the Act of 1919. But was defendant prejudiced 1

*599 The elements of the crimes of manslaughter in the third and fourth degrees as prescribed in the repealed act are embraced in Section 3236, Revised Statutes 1919. There is no complaint of the punishment authorized by the .instructions. Section 4078, Revised Statutes 1919, par. 4, authorizes a new trial “when the court has misdirected the jury in a material matter of law. ’ ’ An instruction, however, on manslaughter in the first degree,' defining the punishment by imprisonment in the penitentiary at not less than five years as fixed by Section 4469, Revised Statutes 1909, would be in conflict with Section 3245, Revised Statutes 1919, which permits the jury to assess a lighter punishment, and would therefore be prejudicial error. We are unable to see how the defendant was harmed by the giving of these instructions. They could not have misled the jury. It is only where the court has misdirected the jury in a material matter of law that a new trial may be granted. As in civil cases, an erroneous instruction must be prejudicial to warrant the reversal of a judgment.

Verdict: Unknown Offense. V. It is also contended that the jury found the defendant guilty of an offense unknown to the law and therefore the verdict is a nullity. The defendant was convicted of manslaughter. The words “in ^16 third degree” have no meaning or signifi-canee. They are useless and may be rejected as surplusage. They do not vitiate the verdict. Utile per inutile non vitiatur. [3 Wharton’s Criminal Law (10 Ed.) sec. 1689.]

In Traube v. State, 56 Miss. 153, the rule is thus stated in the head note:

“T. was indicted and tried for murder. The jury rendered the following verdict: ‘We, the jury, find the defendant guilty of manslaughter in the second degree. ’ A motion was made in arrest of judgment, on the ground that the jury did not convict the defendant of any offense known to our laws, there being no degrees of manslaughter in this State. The motion was over *600 ruled. The words in the verdict, 'guilty of manslaughter,’ were a full and complete finding of the issue submitted, and the court properly treated the superadded words ‘in the second degree’ as surplusage. If a verdict contains a finding which is not embraced in the issue, or contains words which are without meaning, and, after striking out or disregarding such irresponsive finding or such meaningless words, there still remains a perfect finding responsive to the issue, the verdict should be upheld and judgment pronounced accordingly.”

In Grant v. State, 23 L. R. A. (Fla.) 723, the jury returned a verdict: “We, the jury, find the defendant guilty of manslaughter in the first degree. ’ ’ There were no degrees of manslaughter in that State. It was held that such a verdict was, in legal effect, one of manslaughter. [L. C. 737.] [See, also, State v. Bishop, 231 Mo. 411, 415.]

Referring to the Statute of Jeofails (now Sec. 3908, R. S. 1919), this court, in State v. O’Kelley and Fitch, 258 Mo. 345, l. c. 351, said:

“Gradually from 1825 our Statute of Jeofails in criminal cases, now Section 5115, Revised Statutes 1909, has been enlarged. Prior to 1879 it was confined to the curing of defects appearing on the face of an indictment. By Section 1821 of the revision of 1879, its curative power was extended so.as to heal defects occurring in the proceedings not on the face of the indictment. As thus amended, it provides that the proceedings in a criminal case shall not he held invalid for the errors therein stated, ‘nor for any errors committed at the instance or in favor of the defendant; nor because the evidence shows'or tends to show him to he guilty of a higher degree of the offense than that of which he is convicted; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant, upon the merits.’ ”

*601 Case for Jury. VI. We have carefully considered the 157 pages of typewritten evidence. It clearly made a snbmissible case. The jury might well have found that the defendant, after having been ordered out of the restaurant where Reed was employed, provoked a quarrel with him on his own premises, assaulted and heat him over the head with a revolver and, when Reed was fleeing from him, shot him in the hack, inflicting a moral wound. The evidence does not disclose that the verdict was the result of passion or prejudice. Doubtless the jury considered the defendant’s youth and previous good reputation for peace and quiet in mitigation of his offense. The defendant had a fair trial.

Finding no reversible error in the record, the judgment is affirmed.

All concur.