| Mo. | Oct 15, 1884
Lead Opinion
-Thompson was indicted for killing Thos. Powell, and on his trial was convicted of murder in the second degree.
I. The instructions in this case, given on behalf of the state, number eleven and cover some three pages in print, and,those given on the part of the defendant number thirteen and cover a like space. I suppose the day will never arrive in this state when the trial courts wiH in a few brief and pointed instructions lay down the law which is to guide the jury in criminal- prosecutions. Here are twenty-four instructions given and four more asked, when it would seem that three instructions on behalf of the state, and a like number on behalf of the defendant, would have been amply sufficient to- cover the entire law of the case. Of those given for the defendant no more may be said than that, voluminous as they are, they present the theory on which the defendant relied with unexceptional fairness to the jury, and those refused him were properly refused, either as being embodied in those given, or else as being erroneous. He has no complaint on that score.
The 7th instruction on the part of the state we regard as erroneous. It does not appear in evidence that defendant invited Powell out of the house to settle a difficulty with him, or indeed what his purpose was; but it does not appear that his motives were other than peaceable. But there is a more serious objection to the instruction than the one just mentioned. It is this: That it gave Powell the right to shoot at defendant and completely cut off the right of self-defence on the part of the latter, though no overt act was done by him indicating a felonious or murderous purpose. Mr. Bishop says: “It is not lawful to kill another who even meditates the taking of one’s life, till some overt act is done in pursuance of the meditation; in other words, till the danger becomes immediate. The steps necessary may be taken and no more.” 1, Grim. Law,, sec.. 848. To the same
II. There was error committed in refusing to permit the jury to take the instructions with them when retiring to consider of their verdict. Section 3655, R. S., 1879, relating to civil cases, expressly provides that: “Such instructions as shall be given by the court shall be carried by the jury to their room for their guidance to a correct verdict according to the law and the evidence.” And section 1906, relating to practice in criminal cases, provides that: “The proceedings prescribed by law in civil cases in respect to the impanelling of-jurors, the keeping them together and the manner of rendering their verdict, shall be had upon trials on indictments and prosecutions for criminal offences, except in cases otherwise provided by statute.” There is no statutory provision to the contrary. From this it must be concluded that the jury should receive the instructions as well in criminal as in civil causes, that this is what the statute unmistakably means, and its behests should be obeyed. Surely if instructions are necessary to be read in the jury room in the matters of property or reputation, then a fortiori are they in matters of liberty and life.
We reached a different conclusion on this point in the cases of State v. Phelps, 74 Mo. 128" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/state-v-phelps-8006857?utm_source=webapp" opinion_id="8006857">74 Mo. 128, and State v. Butterfield, 75 Mo. 297" court="Mo." date_filed="1882-04-15" href="https://app.midpage.ai/document/state-v-butterfield-8007014?utm_source=webapp" opinion_id="8007014">75 Mo. 297; but being satisfied now that conclusion was erroneous, we will not longer adhere to it.
The judgment will be reversed and the cause remanded.
Concurrence Opinion
conquering. — I concur in reversing the judgment in this case on the sole ground that the court refused the request made by defendant that the jury should be furnished with the instructions when they retired tó consider of their verdict. The law requires the