258 Mo. 281 | Mo. | 1914
Lead Opinion
Defendant was convicted of murder in the second degree, and appeals from a judgment of the circuit court of Oregon county fixing his punishment at twelve years in the penitentiary.
For a consideration of such issues as are here presented it will only he necessary to give a very brief summary of the testimony.
The evidence on the part of the State tended to prove that defendant premeditatedly shot and killed one J. Gk Burnette, in Oregon county, Missouri, on August 29, 1909. The evidence of premeditation consisted mostly in the purchase hy defendant of a revolver and some cartridges loaded with steel bullets a few days prior to the tragedy. This revolver defendant carried on his person, and with it the alleged crime was committed.
On the part of defendant the evidence tended to prove that deceased had made several threats against the defendant. These threats did not extend to the taking of life, but only to a desire to whip or stamp defendant. According to the testimony of defendant and his wife, deceased frequently spoke to them of his ability to use the weapons with which nature had provided him; that on one occasion he knocked a man down and stamped the man thus assaulted so severely that one of his ears had to he sewed on and that he was confined to his bed for several.weeks.
There were no eye witnesses to the killing except defendant and his wife. They testified that deceased
The evidence on the part of defendant and his wife was somewhat weakened by the finding of blood near the box where deceased) had been sitting, and the further fact that some of the bullets fired into the breast of deceased ranged downward as though he was sitting and the defendant standing when such shots were fired.
There was enough evidence to support the verdict of conviction; while if the jury had believed the defendant and his wife, they would have been justified in returning a verdict of not guilty, on the theory that defendant was in imminent peril, or had good reason to believe that he was in imminent danger of great personal injury, when he shot deceased.
For reversal defendant relies upon the failure of the court to give instructions defining the law of presumption of innocence arid reasonable doubt.
OPINION.
There were, in fact, no such instructions given by the court. The defendant introduced evidence tending to prove his previous good character, and on this evidence the court gave the following instruction:
“If defendant has proven to your reasonable satisfaction that prior to the alleged difficulty he sustained, a good reputation as a law-abiding citizen, then you should consider that fact in passing on the question of his guilt or innocence, as the law presumes that one whose character is good is less likely to commit a crime than one whose character is not good, but if you believe beyond a reasonable doubt from all the evidence in this case including that of good character that defendant is guilty on this charge, his good character will not justify or excuse him. ’ ’
The court gave an instruction on the presumption arising from the intentional use by defendant of a deadly weapon upon a Antal part of deceased. In fact,' its instructions are not objectionable, unless a specific instruction on reasonable doubt was necessary for the information of the jury in giving their verdict, as required by section 5231, Revised Statutes 1909.
The doctrine of presumption of innocence and reasonable doubt are so closely related that it has been held that it is not reversible error to omit to instruct on the Iuav of presumption of innocence if the court has fully instructed on the subject of reasonable doubt. [State v. Maupin, 196 Mo. 164, l. c. 175-6; State v. Dudley, 245 Mo. 177, l. c. 184.] The doctrine that a defendant is entitled to an instruction directing the jury that unless his guilt is proven. .beyond a reasonable doubt the jury shall give him the benefit of such doubt and acquit him, is so interwoven in our jurisprudence that it has become an essential element of law in every
“That part of the instruction as to a reasonable doubt is usually asked and given on the part of the State. . . . Even though it may appear to the court there can be no.grounds for a reasonable doubt, yet the accused must have the opinion of the triers of the fact upon that question. This instruction should have been given for the defendant, and the court committed error in refusing it. ’ ’
On this point also see State v. Fannon, 158 Mo. 149, and State v. Gullette, 121 Mo. 447, l. c. 458.
When a defendant is entitled to an instruction limiting or modifying the effect of evidence which has been legally introduced he must prepare and request such instruction; otherwise, it will not constitute reversible error for the court to omit instructions on that point, because the issue thus raised, while it may be helpful to defendant, is one of a collateral nature and not indispensable in arriving at a correct verdict. [State v. Starr, 244 Mo. 161.]
In discussing the instructions which should ■ be given by the court on its own motion “whether requested or not,” KAnnish, J., in the late case of State v. Weinberg, 245 Mo. l. c. 575, said:
“Instructions presenting the facts constitutive of the offense charged or of any grade thereof shown by the testimony, the punishment authorized to be inflicted in case of a conviction, instructions upon the presumption of innocence andi reasonable doubt, and good character when put in issue by the testimony, and also instructions presenting the law, upon each defense interposed by the accused, are necessary for the information of the jury. ’ ’
The Attorney-General insists that as the words “reasonable doubt” were used in the instruction before quoted], it was not necessary to give a separate instruction on that point — that the law really contemplates that only one instruction shall be given in a criminal case which shall cover all the rules of law necessary for the guidance of a jury. Without deciding whether this theory is correct or not, the law (Sec. 5231, R. S. 1909) speaks of instructions, and it is self-evident that the directions of the court can be more readily understood where the different subjects discussed are divided into separate instructions, or separate paragraphs of the same instruction.
The instruction now in judgment and before quoted blended the subjects of good character and reasonable doubt in such a manner as to minimize the effect of any doubt which might have existed in the minds of the jury regarding defendant’s guilt. The court should have unequivocally told the jury that the burdexx of proving defendant guilty beyond a reasonable doubt rested upoxi the State, and that if they entertained a reasonable doubt of defendant’s guilt they should give him the benefit of such doubt and acquit him. For the error of the court, in omitting to give a correct instruction on the doctrine of reasonable doubt its judgment must be reversed.
“If satisfied from the record that there has been a failure to instruct the jury upon a question which goes to the fundamental rights of the defendant, and that by such failure injustice may have been done or a verdict returned different than if such failure had not occurred, this court, in the interest of justice, will not hesitate to grant a new trial, though the question should be presented here for the first time.”
My reason for doubting the correctness of the foregoing pronouncement is that section 5231, Revised Statutes 1909, says that a failure to give such instructions as are necessary for the information of juries in giving their verdict in felony eases “shall be good cause, token the defendant is found guilty, for setting aside the verdict of the jury and granting a neiv trial.” This court does not set aside verdicts and grant new trials on appeal, except as an incident to reversing judgments upon which such verdicts are predicated. Therefore, in my opinion, the words from said section 5231, supra, which we have italicized, pertain and refer exclusively to the procedure in trial courts, and as the law requires motions for new trial to be specific (See. 5285, R. S. 1909) it becomes the duty of a defendant convicted of a felony to call the trial court’s attention to the specific points upon which it has neglected to give proper instructions.
We quite agree with the Attorney-General that errors occurring in the trial of criminal cases should be preserved in the same manner as in civil cases. This is the general law as prescribed by section 5245, supra, and applies to the saving of exceptions to all errors where some other rule of law is not specifically applicable.
It is axiomatic that where there is a statute which deals only with one phase of a subject, and that subject is also governed by a general law, the provisions of the statute which deals only with one phase of the subject will prevail over the general law, in so far as there is conflict between such statutes. [1 Lewis’s Sutherland, Statutory Construction (2 Ed.), p. 532; State v. Railroad, 239 Mo. l. c. 281; Folk v. St. Louis, 250 Mo. 116, l. c. 136.]
It is apparent that prior to 1901 it was the duty of a defendant to suggest to the court the giving of such instructions as it had not of its own motion given. It. is also equally apparent that the General
The contention of the Attorney-General that a defendánt must at the trial, and before the cause is submitted to the jury, make or save specific exceptions to the action of the court in failing to instruct on the points which have by the court been omitted, would be equivalent to placing upon the defendant the duty of informing the trial court of the point of law upon which it had failed to instruct. This the law does not contemplate.
Laws relating to crimes and criminal procedure are liberally construed in favor of the defendant, and strictly construed against the State; and I cannot bring myself to believe that the lawmakers would intentionally relieve a defendant of the duty of requesting certain instructions, and at the same time leave him under obligation to specifically except to the omission of the very instructions which he is not-under obligation to request. Putting it in a little plainer language, section 5231, supra, having specifically relieved defendant of the duty to request certain necessary instructions, by the same token relieves him of the duty of suggesting the giving of such instructions. The position assumed by the Attorney-General calls for a reversal of this- rule of construction, and requires a defendant to speak when the instructions are-given, notwithstanding the statute clearly contemplates that he may remain silent at that important moment, and yet reserve his right to secure a new trial if any necessary declarations of law are omitted by the court.
The Attorney-General calls our attention to section 2081, of the- Civil Code, Revised Statutes 1909, which
This is a part of the g’eneral law applicable to all appeals, but it would not be seriously contended that said last quoted section would prevent a defendant from objecting for the first time in this court to an indictment which does not charg’e the defendant with any crime, even though the trial court had made no ruling on the sufficiency of such indictment. [State v. Levy, 119 Mo. 434, l. c. 437; State v. Meysenburg, 171 Mo. 1, l. c. 27 and 51.] Section 5231, supra, having made it the duty of the trial court to give to the jury all necessary instructions without suggestion or request from defendant, and having further cast upon said court in felony cases the duty to grant a new trial when such necessary instructions are omitted, said section completely supersedes the general law prescribing how errors of that kind shall be preserved and considered.
Our General Assembly may throw around the life and liberty of the citizen whatever safeguards it deems proper, even though such safeguards are inconvenient and render it more difficult for the State to enforce the criminal laws. By enacting section 5231, Revised Statutes 1909', the Legislature has made it necessary, before the life or liberty of a citizen is taken away by judicial process, that the jury to which the case is submitted shall be correctly instructed on all essential “questions of law arising in the case.” Therefore, it is just as necessary to so charge the jury as it is to present a valid indictment or information against the defendant. The only difference, so far as the defendant is concerned, is that when the indictment or information is fatally defective he can secure a reversal of the judgment without calling attention to the insufficiency of such indictment or information in his motion for new trial, while if there he a failure
It was well understood when the opinion in the Conway case was. written that it conflicted with the views expressed in many other prior decisions of this court, particularly the cases of State v. McCarver, 194 Mo. 717; State v. Espenschied, 212 Mo. 215, l. c. 223; State v. Goldsby, 215 Mo. 48, l. c. 57; State v. Wilson, 225 Mo. 503, l. c. 518-9; and State v. Tucker, 232 Mo. 1, l. c. 15. In so far as the opinion in the case at bar conflicts with the conclusions reached in the cases last cited they are expressly overruled.
For the failure of the trial court to properly instruct the jury on the question of reasonable doubt its judgment is reversed, and the cause remanded for new trial.
Concurrence Opinion
CONCURRING OPINION.
I fully concur in the result reached in the opinion of my learned brother Brown in this ease, but I cannot agree with the views; expressed in paragraph 3 of his opinion so far as said paragraph and the inference contained in paragraph 2 of said opinion hold that either the amendment of 18819 or that of 1901 to section 5231, Revised Statutes 1909, has relieved the defendant from the necessity of interposing any exceptions to instructions given by the court, or to the failure of the court to instruct upon all questions of law arising in the case, or upon any one of such questions.
Prior to 1901 the clause of said section 5231 pertinent to this discussion, read thus:
*298 “Fourth: The court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial.” [R. S. 1899, sec. 2627.]
In 1901 the Legislature prefixed to this clause the words “whether requested or not;” so that in my view the necessity, as a condition precedent to review, no longer existed, requiring defendant to either prepare and offer an instruction, or to specifically request the court to instruct, upon such issues in the case as were bottomed upon questions of law arising in the case which are necessary for the information of the jury in giving their verdict, or upon the questions of reasonable doubt and good character, whenever necessary.
Prior to 1901, when the amendment above mentioned was made, it was- the law in this State and in .every other state where the common law prevailed, that exceptions to instructions had to be taken at the time the court gave them or neglected, or refused to. give them, as the case might be, in order to preserve for review objections thereto in criminal cases, just' as in civil cases. [State v. DeMosse, 98 Mo. l. c. 344; State v. Foster, 115 Mo. l. c. 451.] I shall not burden these views with long citations of authorities, but the cases upholding the above statement as to the absolute necessity of preserving by exceptions taken an objection to instructions refused or given, or neglected to be given, as a condition precedent to review, will be found collated in 12 Cyc. 666 and 667, and 12 Cyc. 815 and 820. Unless the addition of the four words .above quoted has served to change the rule, this is still
To go back just a little ways and pick up the thread; of the argument, it may be said to be so well settled in our practice as to be fundamental that matters of exception can only be preserved in a bill of exceptions and kept alive for appellate review by a motion for a new trial. [State v. Libby, 203 Mo. 596.] Likewise it is well-settled, that instructions given or refused, or the failure or neglect to give proper instructions in a criminal case, are pure matters of exception and can be preserved for review only by exceptions and by incorporating them into a bill of exceptions. [State v. DeMosse, 98 Mo. l. c. 344; State v. Marshall, 36 Mo. 400; State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 317; State v. Williams, 77 Mo. 310; State v. McDonald, 85 Mo. l. c. 543; State v. West, 157 Mo. 309; State v. Huff, 161 Mo. 459.] No one will contend that what we call for convenience the “record proper” embraces instructions given in a case, either criminal or civil. It seems to me ‘that it is utterly impossible to take the view that instructions preserve themselves in the record without exceptions made and saved thereto, unless we say that in a criminal case instructions are a part of the record proper. It is fundamental and manifest that they are not. Without a proper .bill of exceptions, kept alive by a sufficient motion for a new trial, neither this court nor any other appellate court, where the common law prevails, would ever for a moment consider error arising upon an instruction unless a plain statute so commanded. This court long prior to the amendment of 1901 and the addition of the provision that a req%\,est for instructions on the matters therein specified should no longer he necessary, had held that exceptions to instructions must be preserved in order to make objections touching them reviewable upon appeal, as an absolute condition precedent, without which no review here could be obtained. This court
It will be noted, therefore, upon an examination of the cases, that when the amendment of 1901 was made, this court was uniformly requiring timely exceptions touching instructions as a condition precedent to review. It cannot, I think, be successfully contended that the Legislature merely by the addition of the words “lufoether reqioested or nob” either specifically or impliedly abrogated the necessity for such exceptions. The Legislature had an opportunity of so saying in express words when they amended this statute
Por these reasons I cannot agree either that a defendant in a criminal case is entitled to a review here of an instruction given -or refused, or of the failure of the court to give an instruction, unless he lodged a timely exception with the trial court, and unless he preserved1 such exception in his motion for a new trial. I am not saying that he should request specific instructions upon such matters as are set out in section 5231, that -is to say, as to any “questions of law arising in the case which are necessary for the information of- the jury in giving their verdict, ’ ’ or as to the subjects
Strictly speaking, what place have instructions in a bill of exceptions unless they get into the- bill by virtue of the fact that exceptions are saved to them? ITow else do they legally and properly become parts of the bill of exceptions unless they be excepted to? In the instant ease, objections were made and general —very general — exceptions were timely interposed by defendant to the instructions given by the trial court.
In my view the many safeguards provided by law and practice for a defendant’s safety considered; the fact that in every felony trial if defendant be too indigent to hire counsel, or too friendless to have counsel hired for him, it is the duty of the court to appoint counsel to represent him; and the fact that by divers provisions of our procedure he is allowed vast advantages over the State, render any other view dangerous, as calculated to provide holes for the escape of the guilty, rather than shields for the protection of the innocent. For this reason I concur in reversing this case, but I do not agree in what is said in paragraph III thereof, and so much of it as would obviate the necessity of saving exceptions to instructions given or refused, or neglected to be given, as a condition precedent to review. In so far as the case of State v. Conway, 241 Mo. 271, is in conflict with the views expressed herein, upon the questions of the necessity of saving exceptions to instructions- and of preserving such exceptions in the motion for a new trial, that case should be followed no longer.