Appellant, convicted of second degree murder, was sentenced under the Second Offender Act, § 556.280, RSMo., to 30 years imprisonment. His apрeal, filed in the Missouri Supreme Court, was transferred here under the provisions of Missouri Constitution, Art. 5, § 3, as amended 1970.
We are confronted at the outset by appellant’s failure to comply with the rules of appellate procedure as to content and form of the brief. Rule 84.04(с), V.A. M.R., made applicable in criminal cases by Rule 28.18, requires “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” Appellant’s statement of facts contains no such fair and impartial statement; instead it cоnsists of an enumeration of the pleadings followed by 14 pages of random verbatim excerpts from the testimony of various witnesses. Though the rule permits a résumé of each witnesses’ testimony, “[S]uch statements may properly follow a general statements of the facts, if desired, but they should not be used to replace the ‘fair and concise statement’ of all the relevant facts required by the rule.”
State v. Burns,
Appellant’s Point III complains of the trial court’s decision not to submit a manslaughter instruction; yet appellant’s motion for new trial failed to allege facts warranting such an instruction. Supreme Court Rule 27.20(a) provides that a motion for a new trial “must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” The Missouri Supreme Court, cоnstruing this rule in
State v. Cheek,
We have reviewed the transcript for plain error under Rule 27.20(c), V.A.M.R., аnd find none. The only issue requiring further comment is whether, as plain error, the appellant was entitled to an instruction on the lesser offense оf manslaughter raised by appellant’s Point III.
In the instruction conference the court considered and concluded a manslaughter instruction was not warranted under the evidence. Further, appellant and appellant’s counsel stated they did not believe the evidencе justified and explicitly rejected the giving of a manslaughter instruction. Shortly before this cause was tried, the Missouri Supreme Court in
State v. Sturdivan,
“Manslaughter is the intentional killing of a human being in heat of passion, on reasonable provocation, without malice and premeditation.” § 559.070, RSMo 1969, V.A.M.S.
and concluding that the record did not warrаnt a manslaughter instruction held:
“Where there is no evidence of provocation, assault or encounter which excites passion beyond control or of culpable negligence, there is no duty to instruct on manslaughter.”
This conformed with M.A.I.-C.R., 6.08 notes on use, effective at the time of trial, which provided: “Where higher grades of homicide are submitted, a manslaughter instruction should not be given unless there is evidence to support the giving of it. It should not be given automatically.” 2
In light of the trial court’s express finding that a manslaughter instruction was not warranted, the state of the lаw at the time of trial, the appellant’s express rejection of the instruction, and appellant’s failure to properly presеrve the Point in his motion for new trial, we cannot say that the failure to instruct the jury on manslaughter has resulted in a “manifest injustice or miscarriage оf justice” under Rule 27.20(c), V.A.M.R.
Judgment affirmed.
Notes
. Rule 84.04(e) V.A.M.R.: . . . “If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument pоrtion of the brief
. The Missouri Supreme Court has recently held that second degree murder and manslaughter instructions must be given in all conventional murder cases.
State v. Staple-
ton,