77 S.W. 525 (Mo. 1903), The State v. Weakley

Citation:77 S.W. 525, 178 Mo. 413
Opinion Judge:BURGESS, J.
Party Name:THE STATE v. WEAKLEY, Appellant
Attorney:Jno. A. Gernez for appellant. Edward C. Crow, Attorney-General, and Bruce Barnett for the State. Jno. A. Gernez for appellant in reply.
Case Date:December 09, 1903
Court:Supreme Court of Missouri
 
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Page 525

77 S.W. 525 (Mo. 1903)

178 Mo. 413

THE STATE

v.

WEAKLEY, Appellant

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan, Judge.

Reversed and remanded.

Jno. A. Gernez for appellant.

(1) A homicide committed without malice and in hot blood engendered by adequate provocation, though with lethal instruments, and intentionally, is but manslaughter in the fourth degree. State v. Reed, 154 Mo. 130; 2 Bish. New Crim. Law, sec. 699; 1 McClain Crim. Law, sec. 336; Wharton on Homicide, secs. 430, 431; 2 Roscoe's Crim. Evid. (8 Ed.), 966; State v. Hill, 4 Dev. & B. (N. C.) 491; State v. McDowell, 32 Vt. 541; 1 East P. C. 233, 234, 235; 4 Black. Com. 191; 2 Bish. Crim. Law, secs. 695, 697, 699, 701; State v. Bowles, 146 Mo. 15; State v. Garrison, 147 Mo. 556; State v. McKenzie, 102 Mo. 632; State v. Edwards, 70 Mo. 480; State v. Watson, 95 Mo. 411; State v. Gartrell, 71 S.W. 1025. (2) It was error in the trial court to fail to instruct on manslaughter in the fourth degree under the evidence. Authorities supra.

Edward C. Crow, Attorney-General, and Bruce Barnett for the State.

(1) (a) Appellant did not ask the court to instruct the jury on all points of law arising in the case. To the instructions given by the court he saved exceptions as shown in the following words: "To the giving of which instructions the defendant then and there duly excepted as not fully setting out and instructing the jury upon all the law in the case." If appellant desired further instructions, he should have either offered them or asked the court to instruct the jury upon all the law of the case. The only difference between a civil and a criminal case in this regard is that in a civil case the party must ask for each particular instruction which he may desire, while in a criminal case the request may be in general form. State v. Meadows, 156 Mo. 110; State v. Waters, 156 Mo. 132; State v. Palmer, 161 Mo. 152; State v. Huff, 161 Mo. 459; State v. Norman, 159 Mo. 531. And this rule has not been changed by section 2627, Revised Statutes 1899. State v. Vinso, 171 Mo. 576. (b) Nor can this court review the instructions which were given in this case, no objection having been made, nor exception saved thereto, on account of errors therein, but only because of the alleged fact that there were not enough of them. In other words, the error claimed by appellant was one of omission and not commission. (2) (a) Appellant complains in his motion for new trial that the court erred in failing to instruct the jury on manslaughter in the fourth degree. The State's evidence showed a killing done premeditatedly and with malice aforethought, and the defendant swore to a state of facts which, if true, would make out a case of self-defense. There was no room for middle ground and no evidence to call for an instruction on manslaughter in the fourth degree. To have given such an instruction would have furnished the jury an opportunity of returning a compromise verdict not based upon any evidence, and would have been as prejudicial to the defendant as to the State. State v. Sumpter, 153 Mo. 436; State v. Renfrow, 111 Mo. 589; State v. Smith, 114 Mo. 406; State v. Brady, 87 Mo. 142; State v. Lane, 64 Mo. 319; State v. Johnson, 76 Mo. 127; State v. Dunn, 18 Mo. 419; State v. Hollingsworth, 156 Mo. 178; State v. Meadows, 156 Mo. 110. (b) But since the defendant asked for no instruction on manslaughter in the fourth degree, he can not now complain, regardless of whether he was entitled to such an instruction. State v. McGinnis, 158 Mo. 105; State v. West, 157 Mo. 309; State v. Weber, 156 Mo. 249; State v. Pitts, 156 Mo. 247.

Jno. A. Gernez for appellant in reply.

(1) The proposition laid down by respondent in the first point of his brief, is not now nor has it ever been the law of this State, nor is such the doctrine enunciated by the cases cited. To the contrary, they prescribe the manner which shall be proper for a defendant in excepting to inadequate instructions, and this manner is identically the one defendant used at the trial. Defendant properly saved his exceptions at the time the court gave its instructions, and subsequently when the motion for a new trial was overruled. (2) The cases cited to the second point of respondent's brief are undoubtedly correct enunciations of law as to instructing on manslaughter, as far as these particular cases are concerned. They simply hold that no instruction for manslaughter is warranted unless there is evidence upon which to base such instructions. That is admittedly the...

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