State v. Douglas

BROWN, J. —

Defendant was convicted of murder in the second degree, and appeals from a judgment of the circuit court of Oregon county fixing his punishment at twelve years in the penitentiary.

For a consideration of such issues as are here presented it will only he necessary to give a very brief summary of the testimony.

The evidence on the part of the State tended to prove that defendant premeditatedly shot and killed one J. Gk Burnette, in Oregon county, Missouri, on August 29, 1909. The evidence of premeditation consisted mostly in the purchase hy defendant of a revolver and some cartridges loaded with steel bullets a few days prior to the tragedy. This revolver defendant carried on his person, and with it the alleged crime was committed.

On the part of defendant the evidence tended to prove that deceased had made several threats against the defendant. These threats did not extend to the taking of life, but only to a desire to whip or stamp defendant. According to the testimony of defendant and his wife, deceased frequently spoke to them of his ability to use the weapons with which nature had provided him; that on one occasion he knocked a man down and stamped the man thus assaulted so severely that one of his ears had to he sewed on and that he was confined to his bed for several.weeks.

There were no eye witnesses to the killing except defendant and his wife. They testified that deceased came to defendant’s home to settle an account growing out of a crop which deceased had cultivated on defendant’s land, a part of which crop had been sold. Defendant being absent, deceased sat down on a small box near defendant’s house and waited for him. When defendant returned the parties exchanged accounts, and, according to defendant’s evidence, when they began discussing the settlement, deceased became very angry, jumped up from the box and struck at defendant, saying as he did so: “I am going to stomp you into the ground. ’ ’ Defendant claimed that he dodged the blow so struck by deceased, and, believing that he was in imminent danger of great personal injury, sliot deceased in the breast five times, inflicting wounds from which he died in a few minutes.

The evidence on the part of defendant and his wife was somewhat weakened by the finding of blood near the box where deceased) had been sitting, and the further fact that some of the bullets fired into the breast of deceased ranged downward as though he was sitting and the defendant standing when such shots were fired.

There was enough evidence to support the verdict of conviction; while if the jury had believed the defendant and his wife, they would have been justified in returning a verdict of not guilty, on the theory that defendant was in imminent peril, or had good reason to believe that he was in imminent danger of great personal injury, when he shot deceased.

For reversal defendant relies upon the failure of the court to give instructions defining the law of presumption of innocence arid reasonable doubt.

OPINION.

Doubtnable I. The defendant did not, in writing or orally, request any instructions, but in his motion for new trial complains of the alleged failure of the trial court to instruct on the legal presumption of defendant’s innocence, and the law of reasonable doubt.

There were, in fact, no such instructions given by the court. The defendant introduced evidence tending to prove his previous good character, and on this evidence the court gave the following instruction:

“If defendant has proven to your reasonable satisfaction that prior to the alleged difficulty he sustained, a good reputation as a law-abiding citizen, then you should consider that fact in passing on the question of his guilt or innocence, as the law presumes that one whose character is good is less likely to commit a crime than one whose character is not good, but if you believe beyond a reasonable doubt from all the evidence in this case including that of good character that defendant is guilty on this charge, his good character will not justify or excuse him. ’ ’

The court gave an instruction on the presumption arising from the intentional use by defendant of a deadly weapon upon a Antal part of deceased. In fact,' its instructions are not objectionable, unless a specific instruction on reasonable doubt was necessary for the information of the jury in giving their verdict, as required by section 5231, Revised Statutes 1909.

The doctrine of presumption of innocence and reasonable doubt are so closely related that it has been held that it is not reversible error to omit to instruct on the Iuav of presumption of innocence if the court has fully instructed on the subject of reasonable doubt. [State v. Maupin, 196 Mo. 164, l. c. 175-6; State v. Dudley, 245 Mo. 177, l. c. 184.] The doctrine that a defendant is entitled to an instruction directing the jury that unless his guilt is proven. .beyond a reasonable doubt the jury shall give him the benefit of such doubt and acquit him, is so interwoven in our jurisprudence that it has become an essential element of law in every criminal case. The defendant is just as much entitled to this instruction as he is to a trial by jury; for if. the court may direct a jury to convict a defendant, then the constitutional right to a trial by jury would amount to little or nothing. In discussing this point in the' case of State v. Gonce, 79 Mo. 600, Ewing, C., said:

“That part of the instruction as to a reasonable doubt is usually asked and given on the part of the State. . . . Even though it may appear to the court there can be no.grounds for a reasonable doubt, yet the accused must have the opinion of the triers of the fact upon that question. This instruction should have been given for the defendant, and the court committed error in refusing it. ’ ’

On this point also see State v. Fannon, 158 Mo. 149, and State v. Gullette, 121 Mo. 447, l. c. 458.

When a defendant is entitled to an instruction limiting or modifying the effect of evidence which has been legally introduced he must prepare and request such instruction; otherwise, it will not constitute reversible error for the court to omit instructions on that point, because the issue thus raised, while it may be helpful to defendant, is one of a collateral nature and not indispensable in arriving at a correct verdict. [State v. Starr, 244 Mo. 161.]

In discussing the instructions which should ■ be given by the court on its own motion “whether requested or not,” KAnnish, J., in the late case of State v. Weinberg, 245 Mo. l. c. 575, said:

“Instructions presenting the facts constitutive of the offense charged or of any grade thereof shown by the testimony, the punishment authorized to be inflicted in case of a conviction, instructions upon the presumption of innocence andi reasonable doubt, and good character when put in issue by the testimony, and also instructions presenting the law, upon each defense interposed by the accused, are necessary for the information of the jury. ’ ’

We adhere to the views expressed by Judge Kennish, as above quoted, and unless the doctrine of reasonable doubt was sufficiently expressed in the instruction touching good character as hereinbefore quoted the cause must be reversed.

The Attorney-General insists that as the words “reasonable doubt” were used in the instruction before quoted], it was not necessary to give a separate instruction on that point — that the law really contemplates that only one instruction shall be given in a criminal case which shall cover all the rules of law necessary for the guidance of a jury. Without deciding whether this theory is correct or not, the law (Sec. 5231, R. S. 1909) speaks of instructions, and it is self-evident that the directions of the court can be more readily understood where the different subjects discussed are divided into separate instructions, or separate paragraphs of the same instruction.

The instruction now in judgment and before quoted blended the subjects of good character and reasonable doubt in such a manner as to minimize the effect of any doubt which might have existed in the minds of the jury regarding defendant’s guilt. The court should have unequivocally told the jury that the burdexx of proving defendant guilty beyond a reasonable doubt rested upoxi the State, and that if they entertained a reasonable doubt of defendant’s guilt they should give him the benefit of such doubt and acquit him. For the error of the court, in omitting to give a correct instruction on the doctrine of reasonable doubt its judgment must be reversed.

Motion for New Trial. . II. The learned Attorney-General insists that even if the instructions as given do not properly declare the law on the subject of reasonable doubt, the error was not properly preserved by defendant, as he did not, at the trial, specifically except to the failure of the court to instruct on that point. He makes an earnest appeal for the overruling of the decision of this court in the case of State v. Conway, 241 Mo. 271. The only proposition of law announced in the Conway case about which the writer has any misgivings is expressed in the following language (l. c. 292):

“If satisfied from the record that there has been a failure to instruct the jury upon a question which goes to the fundamental rights of the defendant, and that by such failure injustice may have been done or a verdict returned different than if such failure had not occurred, this court, in the interest of justice, will not hesitate to grant a new trial, though the question should be presented here for the first time.”

My reason for doubting the correctness of the foregoing pronouncement is that section 5231, Revised Statutes 1909, says that a failure to give such instructions as are necessary for the information of juries in giving their verdict in felony eases “shall be good cause, token the defendant is found guilty, for setting aside the verdict of the jury and granting a neiv trial.” This court does not set aside verdicts and grant new trials on appeal, except as an incident to reversing judgments upon which such verdicts are predicated. Therefore, in my opinion, the words from said section 5231, supra, which we have italicized, pertain and refer exclusively to the procedure in trial courts, and as the law requires motions for new trial to be specific (See. 5285, R. S. 1909) it becomes the duty of a defendant convicted of a felony to call the trial court’s attention to the specific points upon which it has neglected to give proper instructions.

Exceptions. III. Regarding the further contention of the learned Attorney-General that the Conway case, supra, is erroneous in that it enables a defendailq review in this court the failure of the trial court to give necessary instructions, notwithstanding such defendant has not excepted to such failure at the time other instructions were given, and has raised the point for the first time in his motion for new trial, we will say that this very issue received a most thorough consideration when the opinion in the Conway case was prepared. While section 2081, Revised Statutes 1909, was not mentioned in that opinion, it was in fact considered, as were also the statutes of other states similar in form to our own, as well as the constructions that have been placed upon such foreign statutes. The opinion in the Conway case was held up for some weeks and the whole subject was exhaustively investigated by each member of this Division of the court. The opinion prepared by Judge Kennish who, on account of his wide experience, pre-eminent ability and judicial acumen, was fully equipped to weigh the matter from every conceivable point of view, is entitled to great weight.

We quite agree with the Attorney-General that errors occurring in the trial of criminal cases should be preserved in the same manner as in civil cases. This is the general law as prescribed by section 5245, supra, and applies to the saving of exceptions to all errors where some other rule of law is not specifically applicable.

It is axiomatic that where there is a statute which deals only with one phase of a subject, and that subject is also governed by a general law, the provisions of the statute which deals only with one phase of the subject will prevail over the general law, in so far as there is conflict between such statutes. [1 Lewis’s Sutherland, Statutory Construction (2 Ed.), p. 532; State v. Railroad, 239 Mo. l. c. 281; Folk v. St. Louis, 250 Mo. 116, l. c. 136.]

It is apparent that prior to 1901 it was the duty of a defendant to suggest to the court the giving of such instructions as it had not of its own motion given. It. is also equally apparent that the General Assembly, in its zeal to force the courts to accord a full and fair trial to persons accused of felonies, removed from tbe defendant the burden of aiding the court in preparing instructions, and permits Mm to remain silent on the subject of instructions-, if the evidence raises no collateral issue.

The contention of the Attorney-General that a defendánt must at the trial, and before the cause is submitted to the jury, make or save specific exceptions to the action of the court in failing to instruct on the points which have by the court been omitted, would be equivalent to placing upon the defendant the duty of informing the trial court of the point of law upon which it had failed to instruct. This the law does not contemplate.

Laws relating to crimes and criminal procedure are liberally construed in favor of the defendant, and strictly construed against the State; and I cannot bring myself to believe that the lawmakers would intentionally relieve a defendant of the duty of requesting certain instructions, and at the same time leave him under obligation to specifically except to the omission of the very instructions which he is not-under obligation to request. Putting it in a little plainer language, section 5231, supra, having specifically relieved defendant of the duty to request certain necessary instructions, by the same token relieves him of the duty of suggesting the giving of such instructions. The position assumed by the Attorney-General calls for a reversal of this- rule of construction, and requires a defendant to speak when the instructions are-given, notwithstanding the statute clearly contemplates that he may remain silent at that important moment, and yet reserve his right to secure a new trial if any necessary declarations of law are omitted by the court.

The Attorney-General calls our attention to section 2081, of the- Civil Code, Revised Statutes 1909, which says that “no exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.”

This is a part of the g’eneral law applicable to all appeals, but it would not be seriously contended that said last quoted section would prevent a defendant from objecting for the first time in this court to an indictment which does not charg’e the defendant with any crime, even though the trial court had made no ruling on the sufficiency of such indictment. [State v. Levy, 119 Mo. 434, l. c. 437; State v. Meysenburg, 171 Mo. 1, l. c. 27 and 51.] Section 5231, supra, having made it the duty of the trial court to give to the jury all necessary instructions without suggestion or request from defendant, and having further cast upon said court in felony cases the duty to grant a new trial when such necessary instructions are omitted, said section completely supersedes the general law prescribing how errors of that kind shall be preserved and considered.

Our General Assembly may throw around the life and liberty of the citizen whatever safeguards it deems proper, even though such safeguards are inconvenient and render it more difficult for the State to enforce the criminal laws. By enacting section 5231, Revised Statutes 1909', the Legislature has made it necessary, before the life or liberty of a citizen is taken away by judicial process, that the jury to which the case is submitted shall be correctly instructed on all essential “questions of law arising in the case.” Therefore, it is just as necessary to so charge the jury as it is to present a valid indictment or information against the defendant. The only difference, so far as the defendant is concerned, is that when the indictment or information is fatally defective he can secure a reversal of the judgment without calling attention to the insufficiency of such indictment or information in his motion for new trial, while if there he a failure to instruct on some essential question of law arising in the case, he must give the court an opportunity to correct such error by a motion for new trial, in which such error is specifically pointed out.

It was well understood when the opinion in the Conway case was. written that it conflicted with the views expressed in many other prior decisions of this court, particularly the cases of State v. McCarver, 194 Mo. 717; State v. Espenschied, 212 Mo. 215, l. c. 223; State v. Goldsby, 215 Mo. 48, l. c. 57; State v. Wilson, 225 Mo. 503, l. c. 518-9; and State v. Tucker, 232 Mo. 1, l. c. 15. In so far as the opinion in the case at bar conflicts with the conclusions reached in the cases last cited they are expressly overruled.

For the failure of the trial court to properly instruct the jury on the question of reasonable doubt its judgment is reversed, and the cause remanded for new trial.

Walker, P. J., concurs; Paris, J., concurs in opinion filed.