*1 made case and steps in the showing, it took no according to its own Mr. returned time it from the concerning its status inquiry no judg- after 1930, until March, mentioned, in above papers Tobias negligence, in our 1932. Its April, against it in ment obtained opinion, was inexcusable.” 305, we read: Juris, page Corpus In 34 ex- ground of judgment on the seeking a relief party “A of want imputation must clear himself of negligencé cusable taking of the if the relief diligence; cannot have
due he slothfulness, or carelessness, have due to his own appears to been rights.” indifference to his own negligent. Had defendants more than plaintiff In case try Term, to the June January Term or at court, at asked the prosecution, for want of plaintiff’s action dismiss cause of the case or showing that to do on the have been authorized so would appear. not to requested principal her witness plaintiff had the trial it cannot be said Under these circumstances refusing judgment. set aside the court abused its discretion likely have obtained showing plaintiff would There was no made say, its merits. We cannot been tried on better result had the case law, that was not reasonable. Neither as a matter of the settlement fare plaintiff can it did well under the circumstances be said that they were disclosed to the trial court. point urged, ground setting judgment, The as a aside the next . entering that no evidence was introduced as a basis for a decree against plaintiff adoption issue, After issues is without merit. joined judgment may court, have been be entered based parties. agreement A court is not bound such Bank, Iowa, eases to hear' evidence.- v. Des Moines Natl. [Mains 758, l. (4); Carriage N. W. c. Winton Motor Co. v. Blom berg, 147 Pac. l. c. 23 (1-3).] Wash. ¿side refusing trial court, judgment, order of the set Cooley affirmed. BohUng, CC., concur.
PER C., foregoing opinion by CURIAM:—The is- Westhues, adopted opinion as the judges All the court. concur. Dollarhide, Appellant. v. Wade 156. Two,
Division November 1935.
Sharp <&Blunk and Tom R. Moore for Roy McKittriek, Attorney General, Barnes, and Wm. Assistant Attorney respondent. General, for charged Dollarhide,
BOHLING, by C. Wade information with Knight, degree, guilty in the first of James murder, found jnry -manslaughter, punishment and his assessed at ten He years’ imprisonment. appeals from the entered thereon. Dollarhide, State v. appeal.] former Knight behalf State established that went
The evidence an account sought .pay to have Dollarhide to Dollarhide’s home and subject Knight’s sons) Knight (or work. for road due one After some brought parties in the barn lot. up while the were Knight Knight premises. words, leave the Dollarhide ordered Dollar- a lane. proceeded the barn lot into of his sons from one “long gauge them, obtaining shot twelve preceded hide Tom” de- house, While gun to the fence at the lane. from returned distant, shot Dollarhide approximately ceased was one hundred feet exceptions, few deceased shot, deceased twice. with a struck line, de- back, ranging and killed in the from his head to his waist instantly. opin- in the appear practically ceased The material facts again be other than appeal, ion on the former and need not set forth may required specific issues. be in the discussion has not filed brief. Appellant In-
One is that the motion *3 no has evidence, No. a comment and the same struction 7 is on the in the case. the evidence as an instruction place under jury for which purposes 7 informs the Instruction No. part might on the of deceased it against consider evidence of “threats” assignment against as an attack Construing defendant. the viewing it ruling issue, whole, and, the instruction as without The intro purpose, it merit. defendant sufficient that is without specific on duced threats of deceased evidence embracing paragraphs, defendant. instruction consists of two conveying sentences, dif composed phrases, of clauses several thoughts It is an applied to the facts evidence. ferent propositions or proposition statement of law. The abstract aof know which ad purpose were entitled to upon subject. mitted, proper it was for the court to instruct (2d) O’Leary (Mo.), 44 50, S. W. 54(3).] v. [State examination requiring an of the instruc For the purpose (or any given particular whether statement state ascertain tion to evidence, assign ments) on amounts to comment therein requirements 3735, of Section to meet Revised Statutes ment fails Ann., p. 3275), providing that the (Mo. Stat. motion 1929 particularity séparate forth in detail and with “must set grounds specific paragraphs, or therefor.” causes numbered assignment practice better with to an to reference Speaking Ryan competency State v. S. relating (Mo.), to the 50 999, “it 1000(8), assignment states: is sufficient if (2d) W. witness, testimony name of the substance of the thé contains grounds admissibility inadmissibility.” of and the of its or complained Majors, 148, 166(5), 329 Mo. 44 156, (2d) 163, v. S. W. In State challenging testimony, whole of assignment a witness’ “with an particularity, all, out attempting point portions with or at out desired to direct which defendant the court’s áttention or thereof
965 had been reasons claimed the evidence to indicate the for which he v. also, improperly insufficient. State admitted” held [See, 591, 381(8); v. Lonon, 599(7), (2d) 378, 331 56 State Mo. S. W. (2d) 74, 67 Shawley, 352, 374(8), 85(19).] 334 Mo. S. W. relating assignments of error
statute makes no distinction between relating Standifer, v. those to instructions. duty 49, 54, 856, 858, Mo. 289 S. W. “it become .the states: has fair to be as appealing of counsel for defendants criminal cases appellate court.” expects with the trial court as he to be with the among things, brief for 15, provides, Our other Rule No. allege the trial appellant distinctly the errors committed shall on, points relied with citation and contain a statement of the greater care impose provisions authorities thereunder. no These required under with than particularity reference to detail and Ry. Co., Mo. 3735, supra. Chawkley Section v. Wabash [See Darst 782, 809(12), overruling v. 20, S. W. Bartner 30(24), (Mo. App.), 449, 451(2) ; Murphy 285 S. W. Tumbrink (2d) 133, assignment considera now under 135(4).] The tion, in a an brief development, appellant’s without further certainly par civil review insufficient call for a would be City ticular Pence v. Kansas statements in the instruction. 633, Laundry 930, 944(18), (2d) 59 S. W. Co., Service 639(21); Co., Scott v. Missouri Pac. 333 Mo. Railroad (2d) (March 2, 840(17, Kuebler In State 18).] 1929) (Mo.), “in 449, 451(6), . . . 1, structions the evidence” commented without, sufficient; discussion, the holding, was considered the court instructions did not evidence. com- comment The learned *4 (March writing missioner Mason the Kuebler case also wrote State v. 2, 1929), holding, 194, 206(d), 611, (15), 322 14 W. Mo. 617 assignment considering in 2 an Instruction was in conflict that 11, permit with and 12: “In to us to con- instructions order assignment nature, set forth sider of this the should Considering holdings, wherein a the court conflict exists.” the two considering existing apparently had in mind the between distinction subject treating an instruction a whole but one matter as considering separate in and distinct found the in- statements the. viewed, necessary struction. So insofar for a determination as case, in On other the instant the eases harmonious. the issue are case, hand, ruling assignment if the the the Kuebler be con- on in calling sentences,, as strued examination the several clauses given phrases of a ascertain, instruction to that one perchance, evidence, longer or more comments the it should be no thereof assignment Appellant’s followed. in the it for leaves instant case sentences, the court to search" out from the various clauses and evidence, phrases of the instruction wherein it comments the o.n 966 had pleader the speculate whether or not
so; does, as to and, if it to trial. drafting the motion in mind when particular the defect required to do is not statute, the court This, the under [See the because, had (2d) 137, 140(10)]; 56 v. Martin by or subdivisions, part, or by for new trial set forth motion pre- the particularity”) is, by (that item “in detail and with item trial, a suf- new grounds or causes for (that is, “specific”) cise in the would have been embodied ficient statement at- in instruction segregation statement the permit of the of the in instruc- said assignment from the other statements tacked the part of necessity speculation on the all preclude and thus tion the instruction in particular what statement the court as to Dic- New International sought question. Webster’s pleader (2 Ed.) Dictionary (2 Ed.),' for definitions Law tionary and Black’s “Detail,” “Particularity,” “Specific.”] foregoing observations, have examined Notwithstanding we commenting on the portions 7 thereof Instruction No. in detail for any por detailed far are able to ascertain evidence. As as we is may error one non- thereof comment on tion in case are The instructions misdirection. direction and not jury In No. Instruction read and considered as a whole. be from men they might omitted were told that consider evidence in Instruc 7, together with that mentioned in No. tion Instruction for which the passing upon particular purpose tion No. fully clearly stated No. was admitted. Instruction any por insofar subject instruction law on the matter of the may the evi considered a comment on tion of Instruction No. be they fact Again directing jury’s attention to the dence. might portion a certain take into consideration not, think, prej we the deceased was passing upon the demeanor of how perceive do not rather We udicial but favorable misled. No. meets the criti have been Instruction could 113-116, 263 S. Cole, set forth in State cism approved with Instruction 211(3), and in accord is Lloyd 212, 215(9). In case Lloyd (Mo.), in State given thought conveyed separate is sentences of complete thought complete instruction; whereas in the instant case portion repeated in In conveyed No. thereof in Instruction jury in said, be as in Cole that the No. 7. It cannot struction the matter from a consideration of precluded case was the'instant case. Instruc their consideration the Cole withdrawn from held *5 in with the as a whole and connection 7, No. when considered tion comment the evidence does not other instructions O’Leary (Mo.), prejudice appellant. to the of [State 53, (2, 3).] court failed to instruct on is that the Another eject protect property his home and and to right appellant Appellant testified be- premises. he shot deceased from his deceased going him; had “figured” to kill that deceased he deceased cause get” deceased, “didn’t deceased purpose; he for that come believed, he acted “get” evidence, if established that him. His would fully suf- instructed thereon. It is self-defense; and the court an instruction on ficient state the did warrant assignment. subject matter mentioned new appellant’s motion for
Other errors evidence, against the that the verdict is effect greater weight law all thereof, contrary to the under passion prejudice part and result of [State ; (2d) S. W. that certain numbered v. Smith 697(1)] law; failed to properly instructions do not declare the evidence; questions arising that the under instruct on all law admitting incompetent offered court erred in irrelevant and legal evi State, competent part rejecting and in on the Copeland, 335 dence offered on the defendant [State v. have been held (2d) often 750(1)] anything preserve appellate insufficient review. is affirmed.
Finding proper, record no error in the Westhues, Cooley CC., concur. C., foregoing adopt- opinion
PEE CURIAM:—The by Bohling, judges opinion of court. All the concur. ed as the (2d) 164. Armstrong, Appellant. The State Pearl Two, November 1935. Division Maurice Merritt Horace Hoffman