*1 sought issue of’the' authorize the submission sufficient instruction in view presented by defendant’s refused to be parties. the contract between the terms of uncontroverted 1066, Holloway (Mo. (2d) App.), v. Cox Andres 163, on this 243 W. cited Schield, 512, S. v. in con case clearly distinguishable from the instant point are authority Neither, judgment, is trolling in our facts. contrary. case. the instant under the facts of contention Rather.the apparent approval Sweetman Holloway Schield refers with Superior 153 N. Ouellette v. Snow, 414, 770, 187 Mich. W. R. 1014, L. 531, 147 N. W. Works, 157 Wis. & Machine Motor sufficiently S.) upon facts are based (N. A. both of which point bar to make the decisions the case at to those of similar v. Cox seems So Andres conclusion herein. which sustain our 612, which Bowman, App. 200 Ill. likewise approve Woods v. Supp. Y. conclusion, Fox, 156 N. Perry v. as do support to our lends principle, Supp. and, Mulroy Tarulli, 180 N. Y. N. different, Brandeis, 91 Neb. Neff v. though are the facts S.) 933. (N. W. L. R. A. given for plaintiff
Appellant criticizes another tried If the ease is unnecessary discuss same. but we deem theory of on the will submitted again same evidence it the humanitarian negligence under negligence instead of primary appropri- framed of course be should doctrine and the instructions necessary np- to consider theory. Neither is it ately to submit that . is excessive. that the verdict .pellant’s contention judgment re- I is hereof the paragraph For the error noted Fitzsimmons, G.C., Westhues and the causé remanded. versed concur. foregoing opinion Cooley, C., adopted
PER is CURLAjH:—The judges All the court. concur. opinion of as the (2d) Appellant. 73. Buckner, W. Fred —72 Two, May 17, Division 1934.
,230 *2 Frye appellant.
J. Grant for " Boy McKittrick, Attorney-General, Barnes, and William W. As- Attorney-General, sistant respondent. for WESTHUES, Appellant was convicted the Circuit Court C.— County, Missouri, Cape Girardeau of the crime murder in the n second degree. punishment years’ imprisonment His was fixed at ten denied, Being trial, a penitentiary. new appealed in the he from imposed sentence court with accordance the verdict jury. of the following: State’s evidence disclosed the deceased, Ernest family Buchanan, and his lived short from a distance the home had, Deceased’s children on a appellant. occasions,
-of number of building living occupied by appellant. family in the same visited a a morning homicide of the these visits Trouble followed wife, ordered, by appellant his child small exchanged» and the wife of words were go home. Curse went away, striking child her with a broom. The' child at drove the deceased, shortly his and a number thereafter wife home and appellant. Deceased, a son the home of children went towards daughter porch appellant’s far as the .home while went as family away. called remained farther Deceased other members name, talking over their troubles appellant, purpose settling Appellant appeared with their difficulties. peaceably prove at The State’s evidence tends pistol pointed deceased. gun but it failed to fire. Deceased then snapped the grabbed arm and a followed. The evidence is not appellant’s scuffle clear, according to was fired either the State’s witnesses shot but shortly immediately grabbed there- arm before *3 shot and A of that after the fired after. son deceased testified was scuffling picked son, the appellant he, while and were his father times, appellant over the head a number of up a chair and struck let Appellant requested to him causing appellant to fall. ' He and fell. up, he did. Buchanan walked short distance which finger the hospital to a where it was disclosed that second was taken -that had right his and the bullet struck hand had.been-shattered large A lodged in vein had the vertebrae. iliac the abdomen and (cid:127) hemorrhage within a and due to death followed short been severed .by. threat;- appel- State also adduced evidence of -made time. The trespassed lant, going to if deceased ever that he was kill-deceased '- (cid:127) (cid:127). . premises. upon his following: prove.the tends to The trouble Appellant’s evidence ’ coming began place. children to over- the a few after child Appellant testified that minutes the Buchanan with, hands; .coming he a club- in his went noticed deceased home injury feared deceased would inflict on him that because he and-his protect his-.home, and family, because he'desired to himself and he screen; pistol, it, went to the door and latched the procured a loaded porch appellant arrived at the. he a vile that when Buchanan called he, house;- appellant, him come of the that name ordered to .out and leave, he not want trouble and asked .Buchanan -to responded did you,” replied, attempted “To hell with and whereupon Buchanan he,, appellant, thereupon opened door; that -the open the screen porch. Appellant the stepped out On testified that de- door immediately struck him over -the head a number of times ceased fall; causing pistol him to after fell club, he the- was with the - anyone him discharged. stated that struck over Appellant the it. nothing about That a chair he knew had head with times was head a number of admitted. The over the been struck con- bleeding, swelling blows caused considerable tended the blows were struck son after the shot deceased’s fired, prior him while deceased struck contended that shooting. jury, think the and we
The trial court'submitted the case to correctly so, questions de and second of murder in the first grees A supplemental motion for new trial motion were and also a days Many points
filed within made four after verdict. of the original pertain the evi- motion the and exclusion admission Upon objections dence. made examination it was found were saved, no rulings evidence, exceptions the on the admission of or points the have for We preserved not been our review. may say, however, had or no preserved been we find little during merit in the ease, progress them. The the the trial fairly admission and find exclusion of we to have been Complaint tried. was made court in not strik- that the trial erred ing from the record the witnesses for evidence two State. the worthy evidence of one because the witness discredited and not testimony of belief. The testified the other because the witness difficulty that he saw the when it fact shown he could building not have witnessed because a obstructed his Even view. may though weight testimony discredited, a witness the jury of such for the the the witness is and not court. Likewise question could, position whether witness was in a where he not, difficulty could observe to decide and not are, therefore, against the court. ruled points appellant. assigned giving Error is of a number of instructions. Only supplemental one need be considered. In motion man *4 slaughter alleged pointed was to erroneous. It be out in that required jury the motion this instruction the to find “beyond a doubt” by reasonable that defendant was struck deceased and that this in passion resulted defendant’s excitement and and thereby manslaughter. reduced the In homicide from murder to 4 struction follows: reads as “ you jury ‘The court instructs the that believe and find from case, beyond the in doubt, evidence this and a reasonable that the defendant was struck by one or two licks with a club Buchanan, and that as the result of such blows the be- defendant passion came excited and under a heat of of such an extent aforethought he did not act from under with a malice not design to life of not take the Buchanan and under such facts as to degree, constitute murder either not explained excusable as 7, you explained, in Instruction No: and not in self-defense as then .guilty manslaughter should him punishment find assess his by imprisonment penitentiary in the not less than two nor more by county jail than ten years, imprisonment or in the not less than
233 dollars, by both months, by a fine not less than five hundred or or six imprisonment dollars and in the less than one hundred a fine not ” county jail less than three months.’ Attorney-General not states his brief: The learned man- may complain not of instruction in “Appellant reference degree murder, slaughter, if er- when convicted of second even ’’ roneous. 693; Dunn, 681, Baker, 80 l. of State v. Mo. c. State v. The cases 46; 207, 357, 375, Privitt, 246 l. c. 152 S. W. State v. 175 Mo. Mo. 457, 162 Goddard, 198, 232, 75 S. W. v. c. 231, l. c. and State Mo. l. 697, 62 support S. W. are cited this statement. An examina Cade, eases as as the later of State v. S. tion of these well cases 1132, (2d) Hicks, (2d) 230, W. 82, W. Mo. and State 28, will law Mo. disclose that the' statement of made is correct only in a limited sense. In each of the cases cited it will be found because, instruction was that the erroneous held under harmless manslaughter evidence, justified, therefore, a instruction was not the prejudiced giving in defendant was not the of the erroneous struction. however, case, appellant was, In under the this entitled ’ manslaughter jury might found, a instruction. The well have evidence,, appellant prior, was struck
under the shooting. required fatal This submission case (2d) question manslaughter. Creighton, 52 S. W. [State 1176; Sterling, 72 (2-5), l. c. State (2d) 70.] jury, by verdict, punishment pre their assessed the minimum degree.. for murder in the second For all we know the
scribed question may guilty of whether have considered question they If so considered that were con quoted, requiring find fronted with the instruction above “beyond them to deceased, doubt,” Buchanan, a reasonable struck de club, as a two licks and that result such fendant one with .of and undér a of passion defendant became excited heat blows the from and that he did not act afore to such an extent under malice jury may “beyond thought. not have so found a reasonable ‘ instruction, and, shooting under doubt” aforethought guilty malice and as result done with certainly degree. prejudicial in the second The error was of murder correctly rights appellant. This court stated the rule Little, 228 Mo. 128 S. W. l. c. as follows: law in State complain cannot *5 for the State that the defendant “It is said relating fourth-degree alleged instruction man any in an error charge hé was tried and convicted second- slaughter since Talbott, Dunn, 681; 80 murder; citing Mo. degree State State.v. 358; Jackson, 167 Mo. l. c. S. W. 938. State v. Mo. c. l. war- this case point; The evidence those cases We do.not tbink fourth-degree manslaughter, think, on an instruction ranted, we Having; at evidently thought the instance of so. trial court instruction, required be correct.” State, given such -“beyond rea prove upon appellant It was not incumbent -blowscaused him and that such that deceased struck sonable doubt” passion. It and under a heat to become excited reasonably so jury could have if,- under the sufficient they have reduced the offense had found it would so found 2455; May, C. J. State sec. [16 -in State law- was also well stated principle S. W. 918.] 5). (4, (2d) 786, 39 W. l. c. Malone, 327 Mo. unnecessary, beyond phrase “and a reasonable doubt” phrase way worded the ren- in which the instruction was but the giving of the erroneous. In criminal cases the dered the instruction instruction, telling they find a must approved often they au- guilty beyond a reasonable doubt before are defendant upon point. A reasonable doubt convict, sufficient thorized to is given case, repetition in' of -the this was en- “beyond a reasonable doubt” other instructions phrase tirely unnecessary. n significance points and are of such Other made are of little - likely are not to occur retrial. For the character (cid:127) judgment and the error indicated Cooley is reversed cause remanded. Fitzsimmons, CC., concur. (cid:127) foregoing by Westhues, C., is opinion
PEE CUEIAM:—The concur; Leedy Tipton-, opinion JJ., of the court. adopted as the Ellison, J.,P. absent. Appellant. (2d) 732. Williams, Robert —71 May 17, Two,
Division 1934.