*1 693; Albritton, 691,W. Glass, 300 S. v. (2d) S. W. 681.” supra, Case, supra, Murphy insanity In the sole defense was tbe it objection degree in the to the on murder first was that insanity, although a separate not mention defendant’s defense of did given. distinguishable That case from insanity instruction on us, at In the ease before the instruction did mention the case bar. plea his in- appellant’s plea of self-defense but failed mention although given sanity, a on each defense. separate instruction was . questioned clause, If instruction had omitted this “. .
in person, explained lawful defense of as such defense is in other his been herein,” Murphy would have given instructions then Case clause, his point. it contain this and did not mention Since did plea instruc- deprived appellant it defense. This insanity, be find the sentence, you tion ended with this “And facts to unless stated, you acquit as will above the defendant murder. degree,” effect, jury appellant which, in told the second therefore, ground and, acquitted only of self-defense could on the insanity. conflicted the instruction re- stated, judgment
For the and sentence should be reasons ordered. concur. versed the cause remanded. It is so All Lloyd Appellant. 39383. 188 Stone, W. Edward S. No. (2d) 20. Two,
Division 1945. June
Sigmund appellant. M. Bass for Attorney General, Gordon Taylor, Weir, J. E. P. Assistant At- torney General, respondent. *3 BOHLING, Lloyd murder, E. for the Stone was indicted C. trial, convicted, upon degree, Dietmeyer; of Gustave was
in the first years’ imprisonment, ten and manslaughter; of was sentenced to remanded; but first: prosecutes appeal. this The cause will to be have not, impressed not, are we counsel We and think defendant’s stood contention the to make a case. Defendant with the State failed of evidence. Gustave Diet upon his demurrer at the close the State’s sitting came meyer on a stool at of a tavern. Defendant was the bar minutes, departed. ten or fifteen in, remained a and About for few Dietmeyer, returned, up was 'later walked who minutes defendant to then sitting leaning place, A took a and on the bar. discussion down There Dietmeyer slumped forward a little. was fired, was and shot ad Dietmeyer hospital. to Defendant shot. taken a another was Dietmeyer two Dietmeyer a died that he shot with revolver. mitted days later. This was sufficient. to defend permit when the court refused
Error was committed examination' interrogate jurors the on the dire voir ant’s counsel to acquainted they had with certain were or been respect to whether with members Dietmeyer who, him, with were friends and associates of close the Egan gang. appears the It that State’s known as what was of Dietmeyer been jurors that had previously informed the had counsel Dietmeyer the that defendant informed court trouble. Counsel locality a known in the member what was an associate and of had been interposed, upon objection being Egan gang requested, as and the 44 permitted he inquire acquaintance, any, to as their if to individuals,
the associates and Egan gang, members the naming of some might making he have this to his preparatory information challenges. peremptory inquiry, having The the been reason therefor made known appearing proper to “to pertinent, court enable the accused to judiciously right peremptory exercise of his ” challenge. Mann, reasons, v. 83 589, State Mo. 595. Additional may need repeated, (Mo.), which not be be found Miller 207 State v. S. W. 798 W. Sheedy, v. 134 S. 610, 611 2]; [1, [2], Rose Hoelscher, 18 App. 2d Mo. W. 217 273 S. [2, 3]; 1098[1]; 678 et seq., Munch, Ulmer v. Farnham Secs. 57 166, 177, App. (Mo. App.), 207 181; [3] Annotations, ; C. 28 S. J. W. 31 A. 2d c; 113[1-6]. L. R. Am. Jur. 411; See p. 1028; case). L. R. 1330; (and A. 105 A. L. R. A. L. R. 1527 The of Mann, Miller, supra, cases State v. State v. by only cases point, cited defendant to the do error in not disclose proffered the court’s exclusion of evidence defendant’s cross- on Dietmeyer examination of a detective show that was a member of Egan gang. issue, The ob cited do not of the their cases treat being proper scope jurors limited inquiry servations to the of on challenge, voir dire examination for purpose peremptory a specific different issue the admissibility than evidence. complains wording Defendant be of and claims error an gave cause court self-defense, stating he did interpose evidence, having that defense upon and offered no stood his to the specifical demurrer ly State?s evidence. Defendant’s brief does not (the out wherein point only authority cited), Sec. R. S. 1939 thought The interposed discloses error. that defendant the defense *4 omitted, have been but the er reversibly could instruction not was favorable, in Error,, any, giving roneous therefor. if the fact of its Wright prejudicial, authorizing acquittal. in defendant’s State v. 74, (Banc), 66, 866, 352 Mo. 175 W. 2d S. held where that 10], [7, extrajudicial by defendant’s statements State the offered the raise case, the self-defense, issue as in instant an thereon given. examination, should Defendant’s in voir counsel dire mentioned, asking ground hereinbefore informed that a the court question discussed was that the defense was self-defense. See Secs. 4083, 4070, S. 1939. R. coirforming think, supra,
We giving State v. Wright, evidence, defendant the most favorable an construction instruc by (Sec. 4380, 1939) tion homicide accident R. S. was authorized. by State, which, There were statements in a if confession offered believed, taxing although credulity, permitted of a finding one’s Dietmeyer pistol defendant; drew a and threatened that defendant gun; wrestled him for or were fired, a shot shots knowing it defendant, happened, when -wasover had without it how Crowley, gun. 1182(I), 345 Mo. State v. 139 S. W. 2d Bradley, 473, 475, State 179 S. W. [1, 2]; 2d 100 [3] ; Clinton, 344, 348(III), 213 W. S. 842[6], point complains general
Another terms an instruction covering subject-matters separate paragraphs. several This com plaint general. is too judgment
The is reversed and the cause is remanded. Westhues and Barrett, CC., concur. opinion foregoing C., adopted
PER CURIAM: —The Bohling, by opinion judges as the the court. All the concur. Appellant. Burnett, (2d) v. H. H. 39293. 188 S. W. 51. No. Two, 1945.
Division June appellant; Haw for T. J. Cooper and J. M. Crowder of F. Claude *5 counsel.