*1 opinion expert’s that an if it “cannot be received amounts to a con (Mo.), (2d) law.” v. Luck [Fields clusion of S. W. We 18.] admitting did err in testimony. hold that the court assignments We must also overrule defendants’ excluding T. court erred of Union Pacific M. K. & evidence employees, concerning records of convictions other evidence at deposition tempts boy, by defendants, whose taken Penitentiary, railroads, Kansas to wreck trains on after those train. far the derailment of defendants’ These matters too were properly issue this case to be outside considered. Ferguson judgment Sturgis, GC., is affirmed. concur. C., adopted foregoing opinion by Hyde, PER -. The CURIAM opinion of All the court. concur. F. Appellant. v. W. (2d) Johnson, S. W. 1000. The State Banc,
Court en October Roy McKittrick, Attorney-General, E. Reagan, and Franklin As- Attorney-General, respondent. sistant *2 AYBSTIIUES, adopted, slight G! "We-have modifications, the following case, statement of the found in the State’s brief: ‘! September 5, 1931, On Prosecuting Attorney of Boone Coun ty, Missouri, in filed the Circuit Court an information in two counts charging appellant in first forgery count with of check, $15 a and: in count, uttering second with the of said check to C. M. Robinson, operating Hotel, the Columbian Columbia, Missouri. The July cheek 3) 1931, was dated and was drawn on the Farmers Bank Bowling Green, Missouri, of payable and appellant $15 and purported signed by and executed H. B. Millerton.
“Appellant was accorded a preliminary hearing bound over to trial, 28, 1931, the Circuit Court for and ready October answered trial; duly guilty was tried by and a on the second uttering forged count of in question, acquitted check on the ’actually forging Timely first count of the check. motion for a new court, filed, overruled, trial was- appellant heard and sentenced years Penitentiary, to four in the State brings and now appeal. this owned, operated “C. M. Robinson lived at and the Columbian Hotel, Columbia, acquainted Missouri. She first became with the 1931, appellant began March he staying when Ap- at the hotel. pellant salesman, engaged awas in the manufacture and sale of absorbing compound Puro-Kake, boxes, an odor for ice and made operations. his base of Columbia, Missouri, the hotel left June, 1931, and part days the latter returned a few later about July time, at which he the check in cashed July 5, with his wife left at the hotel and the hotel and asked wife; daughter, son that a room be reserved for his and who would days. A $15 in few cheek for was payment be there a tendered in bill, appellant appellant’s money. $10.34 $4.66 hotel received in presence witness, was in the Robinson, cheek endorsed C. M. handwriting been filled out with the had signature, IT. B. exception deposited Millerton. check was Bank, Exchange Columbia, Missouri, following National on 7, 1931, returned, from which bank it Monday, July was ‘Protested’ days people later. Other checks drawn on other a -few had been paid. this hotel appellant at cashed .and Blondet, Notary Public, Mary protested check, who was Bank,, banking Farmers corporation a Cashier Assistant and;
Bowling Green, Missouri, Bowling had. at all of her lived Green She acquainted depositors life. was with the names of various July, 1931, bank that in H. was said and iestified B. Millerton depositor bank; anyone by a that she never heard County. protest name The check intro- notice were objection. duced evidence without “Plenry Carroll, in Pike County, C. Sheriff of Pike had lived County acquainted practically Edge- was all of his life well wood;, town, days A Bowling small ten miles South of few Green. Edgewood prior to the trial went to in an to serve a State effort Millerton, B. subpoena PI. B. Miller- on unable find PI. white, weather-boarded, ton, and small frame while there went to a house, right on the the second house side the road after located Edgewood highway going Bowling leave the into from living Ogden. man and found a there name *3 Missouri, “Appellant Hannibal, was in and returned arrested Sheriffs, Plarry Armstrong Whitworth Deputy Charles and to Co- Missouri, lumbia, Missouri, Columbia, ap- On trial. the road to Millerton, knew H. that he no one name of B. pellant stated in knew man the name of Middleton who was but said lie a following Bowling Green, day appel- at Missouri. The ice business Armstrong Deputy Sheriffs Whitworth that he and lant stated B. in question from H. Millerton who lived check in received the Green, Missouri, Bowling and described Millerton’s Edgewood, near white, house, frame the second small, weather-boarded residence as a you high- right side of the road after leave the on the house located Green; Bowling Edgewood from that check way going into handwriting signature, B. This except the PI. Millerton. was in his Deputy Sheriff, appellant’s as to Whitworth testimony Charles by Harry Armstrong. corroborated statements was part appellant for witnesses on the and subpoenas “All issued evidence, subpoena had in no been State were introduced witness, H. B. Millerton. for the defendant issued forty-three years old, City, in Kansas lived that he was testified and sale of Puro- Missouri; his was manufacture that business contamination of food to eliminate the odors Kake, a preparation product he in a sold number cities refrigerators and that in salesmen; average on the that Missouri, employed others and in daily delivery; for cash on ten orders some- from six would sell he were at checks, which cashed the Columbian receiving some of times in July 4th, check at the Colum- he cashed Hotel; and on City Kansas but returned to Columbian his wife Hotel, took bian July 8, 1931, morning; left next and night and on the Hotel following at hotel for the rooms week leaving he reserved before there; clothing and Puro-Kake boxes that from considerable left and Missouri, lived H. Hannibal, where he B. went to he Columbia weeks; ques- $15 Miller three that he received the check in for about Puro-Kakes; July that said tion for one hundred sale Missouri, Millerton, Mr. an- Bowling- Green, who had July 1st, ad; Millerton first time on swered a blind that he saw Bowling Green; again morning July that he on the 3rd Edgewood Bowling Green Puro-Kakes at near one hundred delivered house, the corner after white the second from to Millerton at a Edgewood, highway going into and received the check off of the turn kept Appellant further testified that he 5 :30 in the afternoon. about Millerton; was a sale to Millerton duplicate sale tickets height glasses had tall, feet in and wore slim about six fellow telling officers "Whitworth and Appellant denied little moustache. Millerton, Armstrong anyone by name of not know that he did waiting- the white in an automobile front of Millerton was but that Puro-Kake; produced that Millerton house when he delivered ap- appellant, it pocket, handed blank check from his inside it, signed it back to Millerton who pellant it and: handed filled out in the back of his Millerton; put Millerton the Puro-Kakes B. H. him appellant house as left parked in front of the little white car H. Middleton and son Edgewood; appellant knew B. Bowling- Green. witness, Bowling W. B. Middleton of Green testified
“Defense appellant there and knew July in the ice business he was since Bowling twenty years 1931; and that lived but did not anyone by II. Millerton. H. the name of B'. A. Miller of Han- know nibal, Missouri, that he knew certain testified identified business; appellant’s ap- that he had worked for sales tickets used paid for his work. pellant but had not been *4 Whitesides, Ray Hotel, Clerk of the Columbian rebuttal, tes-
“In appellant’s reputation appellant for truth knew tified he community Appellant’s reputation was bad. veracity in by veracity impeached Hagerman, W. G. min- was also a truth and by four additional witnesses.” ister and filed, a brief in this has not court. We look to the points preserved for our review. new trial motion for assignments pertain A error to the suf number a conviction. to sustain The above statement ficiency the evidence evidence the record was sufficient for the that the reveals facts forged guilty uttering a instrument with jury find to by 4183, defraud, Section as denounced Revised Statutes to intent (2d) 151, 318 Thompson, 1 S. W. Mo. v. 1929. 623.] [State It 4 assailed. reads as follows: No. Instruction ‘1 any verbal statements of the defend instructed The ease, you may in this proven take them into been have ant consideration, facts and proven. the other circumstances all What, you, anything, may show the defendant evidence 1012 against
has himself, true, said presumed against because him ; anything you self believe from evidence the said obliged in- his own-behalf, you you may are not believe, to treat, just false, false, Same as true as believe it true or when considered in its relation to the other facts and circumstances in the case.’-’ specific
The Objection to this instruction is that it failed to inform the that defendant was entitled' to what he said for him self, require also failed to to consider the whole any statement objection or statements made defendant. The is well taken. In the State’s Sattley, brief cases State v. 131 Mo. Knowles, 464, c. 490, l. S. W. State v. 41; 33 185 Mo. l. c. 176, S. W. 83 Hayes, 1083; W. 262 S. are cited as authori 1034, ties holding instruction, given, the' The proper be in form. approved instruction in the Knowles case embodied both of the ele ments that appellant asserts were omitted from Instruction No. 4, given in this Hayes "case. same is The true of the case. 262 S. [See W. l. c. 1036 We fail find quoted (5).] Sattley case from which it is claimed that No. 4 Instruction copied-. Sattley case was opinion refers to an Instruction No. 7, having approved been so often that the court contented itself citing simply approved They three cases which similar instructions. are, Carlisle, State v. Brown, 102; 57 State v. 104 Mo. 365, 16 S. W. Wisdom, State v. 406; 119 24 S. W. In the Carlisle and Wisdom cases opin the instructions are embodied in the ions and contain the elements referred to. The instruction considered in the Brown copied If, case was not opinion. cases, in criminal trial necessary give courts deem it an instruction with reference defendant, statements made a proper a form of such an in Hamilton, struction will be State v. Mo. l. c. 127; W. Glazebrook, S. W. l. In (14). discussion,
struction No. now under has poison left it all of the defendant, that is detrimental ato and contains none of the antidotes that are found in the instructions, extent, which to some least, at poison. neutralize instruction in this case told the against that what presumed defendant said himself was jury, true. have, did tell the as it should that defendant was entitled to benefit of behalf, what his own if true. The permitted only part consider of defendant’s required statement. The instruction should have to consider together all of defendant’s statements and to consider them in view *5 they circumstances which statement, under were made. The alleged by appellant have been officers, made to that he.did Millerton, not know H. B. when alone, very damaging. considered If this statements, alleged statement is considered the other nearly have it so appellant’s been is inconsistent with made, in a few only Millerton seen According lie had nocence. these him. Under circumstances very little about knew times and harmless, and re considered: cannot be in the instruction the error quires a reversal of case. a number to introduce evidence sales offered -evidence,: made, according appellant’s
tickets which were in.-the H. B. Mil had been-made to these business. One of usual course of charge, was upon which check corresponded with the lerton and was sustained. this evidence Objection to the introduction based. making this out opportunity appellant had no shoAvnthat It Avas Under charge against him. of the been notified exhibit after he had: in evi been admitted have exhibits should circumstances these have assignments-made, jury. -Other of the consideration dence for merit. to be without been examined eause -remanded and the reversed judgment trial court is of the ' - trial. for a new foregoing opinion by Westhues, PER C.,- in CURIAM: The n All adopted opinion Court en Banc. Division Two concur. Rehearing. On Motion
WESTHUES, briefs in State has filed most exhaustive C. The rehearing in this case and in the case support of its motions for (2d) concurrently Dollarhide, 63 W. with this case. decided urged case, holding of an opinion in each that our verbal with reference to statements defendants error, prior'decisions Division is in conflict with reA^ersible en baric. From’ and with decision the court Two of this court Attorney-General case we Dollarhide learned: brief of the grew was Avhichinstructions this nature that the seed from find State, 13 practicó in the planted Missouri case of into our 382,1. following approved: instruction was where the ought jiiry receiving prisoner, “Tn the declarations part, consideration, and believe that them into take the whole charges reject that which is in his favor.” prisoner, and Avhich instructions'grew so'lengthy grow, from little acorns tall oaks As in the Green case. short concise out of the The one taken two definite forms. seem to have The instructions cáse, which the Dollarhide we in this and was condemned form, is in as follows: substance as the modified refer to de- any A^erbal statements of instructed: jury are case, you may into take them proven that have been fendant proven. consideration, the other facts circumstances with all *6 may What yon, anything, the evidence if defendant show that against himself, has true, against said presumed is to be because himself; anything you the de- may from the evidence believe believe, behalf, you fendant in obliged said his own to are you may false, treat or just the same as or as believe it true true false, cir- when in facts and considered its relation to all the other cumstances in the case.”
Instructions similar form in a of cases were number opinion. be discussed later Another form given, of instruction, which has been more often is similar to the Knowles, one 83 S. W. l. c. and reads as follows: you believe, court instructs the evi- .from
dence, any to the defendant made statements relation charged against crime him, jury must such statements consider together. he what said is entitled to benefit defendant any- himself, true; and is benefit of the State entitled to the thing against proven the State. himself statements said against presumes What law defendant said himself the true, against himself; because said for him- what the defendant said self believe, in state- are not bound to because it was said proved by ments the State. But the believe it or disbelieve it, as it It is shown to be or false in this cause. true the evidence circumstances, is consider, for the to how under all the facts and much worthy of the whole statements the deem of belief.” parts italicized are not in the form of instruc- contained tion above referred to as the modified form. searching
In authority giving of these books for to sustain the instructions is there is to be found of this State. little outside generally invading held that is of such an instruction province jury. Juries, pages In 1 Randall’s Instructions To 87, 88 and we read: general instruct, to proper
“As rule it is error refuse instruct, weight party as to the effect of a of the admissions case, in a civil or of and in- prosecution, a defendant in a criminal discrediting testimony party, structions the oral admissions of.a charging or caution, or, that it on the other should be received hand, evidence, satisfactory strong it constitutes conclusive or erroneous, criminal properly An instruction in a refused. himself, case that presumes against the law that what accused is while what he said for himself the are not bound believe, juris- is In weight erroneous as on one evidence. diction, however, when, prosecution, it is evi- held that a criminal ordinary weight dence than introduced is entitled less or more tending evidence, extrajudicial such as statements guilt, establish his an to how such evidence must be ” weighed proper . point as one on a . of law. . jurisdiction authorizing
The one referred to as the instruction Corpus Juris, Missouri. In 16 page section it is said: *7 admitted, jury “After a province confession is it is the of the pass upon its credibility weight.” and
Many support authorities are cited in of text in In- the Randall’s Corpus structions To Juries and Juris. against
Our own-court has also leveled some harsh criticisms these say Thomas, instructions. Note what this had to in State court v. 250 157 Mo. S. W. l. c. 339: opinion grave
“Tn pro- the of the writer there is doubt as to the priety necessity giving any attempting or trial instruction courts weight given to define the oral admissions or confessions against plain spirit Such instructions the letter interest. violate and 1909, prohibiting of Section com- Revised Statutes courts from menting any upon We if evidence. doubt citizen of Missouri was grossly not ignorant ever selected for service who was so coming against understand that a from statement interest voluntarilv litigant true. We are pen the mouth of a should be treated giving long-established aware of the in this State of instruc- custom defining given against weight to to oral admissions the tions the be same, making' to reverse party interest the and we would hesitate character, believe trial courts we solely a case for an error of but juries untrammeled only legal should documents and: leave construe weighing oral evidence.” the and reversible error In the above case court held erroneous the given in this form as that an in the identical instruction A of de- case. this in the evidence. confession There was difference and the evidence, in this case while fendant had been introduced incriminating state- was introduced of verbal Dollarhide case evidence ments made the defendants. 487, 150 Mo. where See, also, 51 S. W. l. c. Hudspeth, v. State which read no terms an instruction this court in uncertain condemned as follows: statements believe the court instructs State, not denied proven by and have been defendant, they are táken as true.” in part said: court jury, province of invaded the “By instruction the court credibility evidence and weight of the and decided them the lawrs,it is the whereas, our witnesses, under Constitution - upon -witnesses pass right duty exclusive n law, then the be testimony. If this instruction weight they their oaths accept truth which under may required that as law common maxim the may to be falsehood. believe 1.016 respond, respect ‘that law the must not to the and; only judges must judges, questions of fact the as to ” Litt. Leg. 80; Max. Co. respond, only jury.’ [Broom, 295b.] rehearing approved
The oldest
motion for
case cited
form, which
the elements
an
in a modified
omitted
altogether statements of a defendant
must consider the
in his
what he said
to the benefit of
that the defendant
entitled
464, 33 W.
S.
Sattley,
v.
behalf,
own
is State
Attorney-General
opinion. The
in the
The instruction
not set out
out
pointed
As
the files of the case.
has
the form from
obtained
original
cases cited
opinion, the instruction
elements
in it
two
support
in that case had
of the instruction
given to the
whatever was
mentioned.
consideration
No
decline
“that we must
except
say
approved so often
it had been
support
cited in
noted,
As
the cases
upon
to enter
its defense.”
given in that case.
approve
do not
an instruction as
thereof
[The
(7),
Tobie,
W. l.
same
be said
*8
State
178,
136,
159
60 W.
547,
Hudspeth,
v.
Mo.
S.
and State
Cushenberry,
69, 212
In State v.
Sharpless,
v.
111 S. W.
Mo. 176.]
not con
737,
approved was
168, 56 W.
the instruction
157 Mo.
S.
Davis, 226
opinion.
the
In
at all in the course of
sidered
citing
470,W.
493, 126 S.
the court contented itself
Mo.
In
522,
province jury the ever considered points the Nor did the court consider proving instruction. the (2d) l. 537. c. Lewis, 1070, 323 20 W. v. S. in State on the a comment was not that the instruction is there stated testimony it no reference to the evidence in the case because 1036, para 262 W. l. c. Hayes, v. State of the defendant. It cites However, authority approving instructioii. 5, the graph as an are which Hayes both elements in the case contained instruction There form. to as the modified instruction referred omitted from the an examined, approving all that have been may other cases but be Sattley opinion. form, root in the in the modified all of It deserves modified form is vicious. in the The instruction Hudspeth, Thomas, v. and State v. in criticism contained cases criminal courts in supra. Trial l. 150 Mo. c. S. W. always they instruct tbe that the sole are of the credibil ity weight given testimony. of witnesses to be their This proper.,, instruction is practice Under our Missouri it is the settled .judges credibility law are the sole of witnesses that weight given testimony. and the their This needs no citation authority. Jf that is what giving true defense is there an in telling weight they struction what give must to verbal state ments or confessions made a defendant? Does this instruction leave unhampered weight they deliberations as what in.their give are to to the evidence? We think not. Does not the instruction lay particular upon certain stress evidence and it does not minimize given other evidence? The the modified form .is certainly rights prejudicial In of a defendant. Illinois and some are approved other states tell instructions the State has of verbal introduced evidence statements made they give weight defendant must as much to the statements [See favorable to a defendant as those that are detrimental. Burnett People, v. 204 Ill. E.N. 505.] instruction, given Hayes case, supra, form which that they tells the must consider the whole of a defend- ant’s or statements and that statement entitled behalf, nearly objectionable what is said in own is not his so or prejudicial defendant as the form. think it modified We what, weight they province jury, also invades the should as.to give testimony, given. to the and should such instruction, however, Hayes case, an as in be harmless error. conehiding approval
In we desire our to add criticisms made Thomas, the instruction in the modified form .found in State v. supra, Hudspeth, S. W. l. and State 150 Mo. We escape an prejudicial cannot the conclusion such instruction is *9 follows, therefore, ruling defendant. in State v. rulings cases, approving Sattlev and similar in other an instruction form, in the modified are not sound cases should be and those question. on hereby point for re overruled The motion hearing is overruled. PER foregoing opinion CURIAM: The on Westhues, G., rehearing,
motion for is adopted 'opinion as the en Banc. Court All the concur.