State v. Frazier

137 Mo. 317 | Mo. | 1897

Sherwood, J.

The vain repetitions in which the heathen indulge when making their prayers, finds a full equal, if not a superior, in the instructions given in this case, twenty-three in number and covering nearly eight printed pages.

There is in the old arithmetics a chapter entitled <<Permutations” in which is taught how often the changes can be rung on the location of a given number of objects. This chapter would appear to have been consulted before the foregoing instructions on self-defense were drawn. But “what can’t be cured must be endured,” and so we have to travel over the superficial area of these instructions as did the trial jury in the court below.

Proceeding then to consider the instructions which have been assailed:

Presumptively, when a homicide occurs, and nothing more appears, the crime is murder in the second degree. And the jury may have disbelieved a portion of the testimony as to deliberation, and believed the existence of the other elements necessary to constitute murder in the second degree. And in the direct conflict between so many of the witnesses on the part of the state, and so many on the part of the defendant, it was perhaps the best thing the trial court could do, to give an instruction for murder in the second degree. If the trial court had given the first instruction asked by defendant, and it had been obeyed by the jury, the defendant must have been acquitted and discharged notwithstanding the jury may have believed him to have been guilty of murder in the second degree.

Our statute provides that the jury may find a defendant not guilty of the offense charged in the indictment, and may find him guilty of any inferior grade of such offense, and any person found guilty of murder in the second degree, shall be punished according to the verdict, although the evidence shows him to be guilty of a higher degree of homicide. Sec. 3949, R. S. 1889. And section 4115, Ibid., contains a similar provision as to punishment for a lower grade of offense than the one in evidence shows the accused to be guilty of, and prohibits the judgment from being in any ‘manner affected by reason thereof.

Besides, the prosecuting attorney before the trial began or during the trial might, at his own option, have entered a nolle as to murder in the first degree, and elected to try defendant for the next lower grade of that offense, in which case the situation would be precisely as now presented, and certainly the jury would not then have been authorized to acquit unless they found defendant guilty of murder in the first degree, and yet the facts in evidence must have been the same. For these reasons we hold that no error occurred in the refusal of instruction number 1 asked by defendant, and in giving an instruction for murder in the second degree.

It is claimed that instruction number 13 given for the state is not the law and is in direct conflict with instruction number 4 given at the instance of defendant. Instruction number 13 is in entire accord with numerous instructions heretofore approved by this court, and if instruction number 4 given for defendant and at his instance was at variance with instruction number 13, it was because the latter was right and the former wrong, and because instruction number 4 was more favorable to him than it should have been, but under our statute a defendant can not avail himself of an error committed at his instance, or in his favor. Sec. 4115, R. S. 1889.

A like objection is made to instruction number 12 for the state on the ground that it is not the law, and besides at variance with instruction number 3 given for defendant as to which similar observations are applicable as those just previously made as to conflict between other instructions.

It is urged that the court failed to instruct the jury as to all questions of law, etc., and especially as to good character. It has been the law in this state for many years, and especially since the enactment of section 1908, Revised Statutes 1879, now section 4208, Revised Statutes 1889, requiring the court to instruct the jury on all questions of law, etc. - But this court held all questions of law did not include character though it was entirely proper to instruct on it if requested. In 1895, the legislature believing that character toas embraced in the word all,” pointedly enacted that an instruction should be given on that topic, whenever necessary. But this edition did not make-the law any more mandatory than it always had been. The only difference in opinion was whether “character” was embraced in the words “all questions,” etc. This being true, as defendant did not when the instructions were given, except because the court had not instructed the jury on all questions, etc., he can not avail himself of any failure if there was one in this regard. State v. Cantlin, 118 Mo. loc. cit. 111; State v. Paxton, 126 Mo. 500; State v. Nelson, 132 Mo. 184; State v. Hilsabeck, Ibid. loc. cit. 358.

As to the multiplicity of instructions given in this instance of which counsel for defendant complain, we-can only say that we have remonstrated in vain with the trial courts on this subject, and that we are powerless to correct the evil. So long as the instructions do-not palpably conflict as above explained, it will be no cause for reversal, though they be “as the sands by the-sea-side for multitude.” As the evidence is abundant in the record to authorize a conviction, and as we have discovered no substantial error, we shall affirm the-judgment.

All concur.