Defendant was convicted of murder in the second degree. The jury assessed his [597] punishment at imprisonment in the State Penitentiary for a term of twenty-five years.
On defendant's appeal, the sole assignment of error is the refusal of the trial court to give his requested Instruction D-E. It is contended that this was a proper converse instruction to Instruction 1 given by the Court to which defendant was entitled under our rulings in State v. Fraley, 342 Mo. 442, 444,116 S.W.2d 17, 19 (1); State v. Quinn, 344 Mo. 1072, 1075,130 S.W.2d 511, 513 (3); and State v. Talbert, 351 Mo. 791, 796;174 S.W.2d 144, 145 (3). The trial court, in a memorandum opinion overruling the motion for new trial, considered that the refusal of Instruction D-E could not have been prejudicial because it was not a proper converse instruction but merely repeated part of Instruction 1 in substantially the same language. *Page 1174
Defendant's evidence was that the deceased Paul White went to defendant's beer tavern, having previously stated he "was going to take the place", and upon arrival created a disturbance. When defendant told him he would have to quiet down or leave, he defied defendant, cursed him and advanced in a threatening manner, at the same time making a motion with his right hand toward his pocket. Defendant drew a pistol from his pocket and shot White, who died two hours later. According to the State's evidence, after an argument with defendant, White's brothers were taking him out of the tavern, and defendant followed them, pushing through the crowd to get to them, and shot White after he had reached the front door.
Instruction No. 1 submitted both first and second degree murder, defined the terms used, and authorized a verdict on the latter charge, as follows: "Bearing in mind the definitions heretofore given of the terms wilfully, premeditatedly and with malice aforethought, if you find and believe from the evidence that, in the County of Madison and State of Missouri, on or about the 11th day of December, 1943, the defendant Ruben Boyd feloniously, wilfully, premeditatedly, and with malice aforethought, but not deliberately, shot one Paul White with a pistol loaded with gunpowder and leaden bullets, and further find from the evidence that on or about the 11th day of December, 1943, the said Paul White died from the effects of such shooting, then they will find the defendant guilty of murder in the second degree, and unless they find the facts to be as stated in this last instruction, or if you find for defendant under Instruction No. 2, they will acquit the defendant of murder in the second degree."
Refused Instruction D-E was as follows: "The Court further instructs the jury that before you can convict the defendant in this case of second degree murder, you must find and believe from the evidence, and beyond a reasonable doubt, that on or about the 11th day of December, 1943, in the County of Madison and State of Missouri, the defendant did feloniously, wilfully, premeditatedly and with malice aforethought, but not deliberately, make an assault upon Paul White and did then and there with a pistol loaded with gun powder and metal or leaden bullets shoot and kill the said Paul White."
[1] We reaffirm the rulings of the Fraley, Quinn and Talbert cases, for the reasons so well stated in the Fraley case, that "if a defendant offers a correct instruction as the converse of the State's main instruction, it should be given, unless fully and fairly covered by other instructions." (Fraley case, 116 S.W.2d l.c. 20.) However, we do not think there was any prejudicial error in refusing Instruction D-E here, because we believe it is apparent that exactly the same matter, as therein set out, was fully and fairly covered by Instruction 1, and the requirement, that the state must establish beyond a reasonable doubt all facts essential to conviction, was fully covered by Instruction 5. *Page 1175
Instruction D-E required only an affirmative finding of the same facts, in substantially the same language, as did Instruction 1. The only difference was that No. 1 said, "if you find (setting out an affirmative finding of facts) . . . find the defendant guilty"; while D-E said, "before you can convict . . . you must find (exactly the same affirmative finding of facts) etc." It is difficult to imagine how the findings required by D-E could be more "fully and fairly covered" by another instruction than they are by No. 1 herein. They are not only fully and fairly covered but one is completely a restatement of the other, except that No. 1 is more favorable to defendant than D-E because it also contains a direction to acquit unless the jury does make the required affirmative finding of facts, and further reminds them of defendant's right to acquittal [598] on self-defense submitted in Instruction 2. Although called a converse instruction, D-E contained no direction to acquit on the basis that essentials of the offense "be not found" as suggested in the illustration of a converse instruction given in State v. Williams, 309 Mo. 155, 185, 274 S.W. 427, 436. To merely restate and require again the same affirmative findings would be more confusing than helpful. We, therefore, hold that defendant could not have been prejudiced by the refusal of Instruction D-E; and that the case was fairly tried and correctly submitted.
The judgment is affirmed. Douglas, Gantt, Leedy, JJ., andClark, C.J., concur; Ellison, J., dissents in separate opinion filed; Tipton, J., dissents and concurs in dissenting opinion of Ellison, J.