State v. Hayes
89 Mo. 262
Mo.
1886
Check Treatment
Sherwood, J,

This cause has been re-argued; the sole point on which it was set down for re-argument

*263being in relation to the alleged insufficiency of the instruction given by the court of its own motion, which contained no element as to the necessity of the knowledge of the defendant of the official character of the deceased. Such a lack in an instruction was held fatal under the ruling of this court in the case of the State v. Grant, 76 Mo. 236, in which it was ruled that where the state relies on the fact that the victim of the homicide was an officer in the discharge of his duty, that the existence of such fact must be submitted to the jury by an appropriate instruction. To the same effect, see State v. Underwood, 75 Mo. 230. And in the earlier case of State v. Roberts, 15 Mo. 28, instructions which embodied the knowledge of the defendant of the official character of the person attempting the arrest' were approved.

For this reason the judgment should be reversed and the cause remanded.

All concur, save Norton, J.