State v. Boyd

• Decision Date: 08 April 1946
• Docket Number: 39408
• Citation: 193 S.W.2d 596,354 Mo. 1172
• Parties: State v. Ruben Boyd, Appellant
• Court: Missouri Supreme Court

193 S.W.2d 596

354 Mo. 1172

State v. Ruben Boyd, Appellant

No. 39408

Supreme Court of Missouri

April 8, 1946

Appeal from St. Francois Circuit Court; Hon. Norwin D Houser, Judge.

Affirmed.

M C. Matthes and J. W. Thurman for appellant.

(1) In all criminal cases if the defendant offers a correct instruction as the converse of the State's main instruction it should be given. The practice of concluding the State's main instruction with the words "and unless you shall so find, you will acquit" or words of like import, is not a sufficient reason for refusing a correct converse instruction offered by the defendant. In this case Instruction D-E offered by defendant was a proper converse instruction to Instruction 1 given by the court and therefore the defendant was prejudiced by the refusal of the court to give said converse instruction. State v Quinn, 130 S.W.2d 511; State v. Fraley, 116 S.W.2d 17; State v. Talbert, 174 S.W.2d 144. (2) Instruction D-E offered by defendant was a proper converse instruction to the State's main Instruction 1. State v. Whitchurch, 96 S.W.2d 30; State v. Hayes, 247 S.W. 165; State v. Quinn, 130 S.W.2d 511. (3) Instruction 1 given by the court being the main instruction was so verbose and long as to be confusing and misleading. Instructions should be couched in clear and understandable language. State v. Owsley, 111 Mo. 450; State v. Malone, 39 S.W.2d 786.

J. E. Taylor, Attorney General, and Gordon P. Weir, Assistant Attorney General, for respondent.

(1) The court did not err in refusing to give Instruction D-E requested by the appellant. State v. Fraley, 116 S.W.2d 17, 342 Mo. 442; State v. Quinn, 130 S.W.2d 511, 344 Mo. 1072. (2) All assignments of error contained in the motion for new trial and not carried forward in the brief of the appellant, are waived. State v. Mason, 339 Mo. 874, 98 S.W.2d 574; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Davit, 343 Mo. 1151, 125 S.W.2d 47; State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245.

Hyde, J. Douglas, Gantt, Leedy, JJ., and Clark, C.J., concur; Ellison, J., dissents in separate opinion filed; Tipton, J., dissents and concurs in dissenting opinion of Ellison, J.

OPINION

HYDE

Defendant was convicted of murder in the second degree. The jury assessed his 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.

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."

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.

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 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., and Clark, C.J., concur; Ellison, J., dissents in separate opinion filed; Tipton, J., dissents and concurs in dissenting opinion of Ellison, J.

DISSENT BY: ELLISON

ELLISON J. (dissenting).

I respectfully dissent from the holding of the principal opinion that the trial court did not err in refusing to give appellant's instruction D-E, offered as a converse of the third part of the State's main instruction No. 1. This instruction, as printed in the record, was over three pages long. It contained the usual definitions, stated the usual presumptions, and then instructed on both first and second degree murder, of which latter the appellant was convicted. Then followed what may be called an "unless you so find clause," as follows: ^[1] "and unless they find the facts as stated in this last instruction . . . they will acquit the defendant of murder in the second degree." Following the above instruction No. 1 were three other State's instructions. The appellant's refused converse instruction told the jury that "before you can convict the defendant . . . you must find and believe from the evidence, beyond a reasonable doubt" -- and then recited the same facts as the State's instruction No. 1 required to be found on the second degree murder charge. However, the offered converse instruction simplified those facts slightly, and required them to be found beyond a reasonable doubt -- which the "unless you so find" clause in the State's instruction did not do -- though there was another State's instruction, No. 5, on reasonable doubt.

The principal opinion holds the refusal of appellant's converse instruction D-E was not "prejudicial" error for this sole reason: "We believe it is apparent that exactly the same matter, as therein set out, was fully and fairly covered by" -- the State's instructions No's 1 and 5. In other words, the opinion regards the "unless you so find" clause in the State's instruction No. 1 as the full equivalent of the appellant's refused converse instruction D-E; and looks to the State's instruction No. 5 on reasonable doubt as supplying that element, which the "unless you so find" clause omitted and appellant's instruction D-E...