State v. Douglas, No. 18061.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Brown
• Citation: 258 Mo. 281,167 S.W. 552
• Parties: STATE v. DOUGLAS.
• Docket Number: No. 18061.
• Decision Date: 26 May 1914

167 S.W. 552 258 Mo. 281 STATE
v.
DOUGLAS. No. 18061. Supreme Court of Missouri, Division No. 2. May 26, 1914.

1. CRIMINAL LAW (§ 778)—INSTRUCTIONS— PRESUMPTIONS OF INNOCENCE.

The doctrines of presumption of innocence and reasonable doubt are so closely related that it is not reversible error to omit to instruct as to the presumption of innocence, if the court fully charges as to reasonable doubt.

2. CRIMINAL LAW (§ 789) — INSTRUCTIONS — REASONABLE DOUBT.

It is reversible error in a criminal case to fail to instruct that, unless defendant's guilt is proved beyond a reasonable doubt, the jury shall give him the benefit of the doubt and acquit.

3. CRIMINAL LAW (§ 824)—INSTRUCTIONS— DUTY TO REQUEST.

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, or otherwise its omission will not constitute reversible error, since the issue is one of a collateral nature, and not indispensable in arriving at a correct verdict.

4. CRIMINAL LAW (§ 789)—INSTRUCTIONS— REASONABLE DOUBT.

On a trial for homicide, an instruction that, if defendant had proved to the jury's reasonable satisfaction that prior to the alleged difficulty he sustained a good reputation as a law-abiding citizen, the jury should consider that fact in passing on his guilt or innocence, as the law presumed that one whose character was good was less likely to commit a crime than one whose character was not good, but that if they believed beyond a reasonable doubt, from all the evidence in the case, including that of good character, that defendant was guilty,

[167 S.W. 553]

his good character would not justify or excuse him, was not a sufficient instruction as to reasonable doubt, since it blended the subjects of good character and reasonable doubt so as to minimize the effect of any doubt which might have existed in the minds of the jury regarding defendant's guilt.

5. CRIMINAL LAW (§ 1063)—APPEAL—RESERVATION OF GROUNDS OF REVIEW—MOTION FOR NEW TRIAL.

Under Rev. St. 1909, § 5231, providing that, whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case necessary for their information in giving their verdict, and that the failure to so instruct in cases of felony shall be good cause for setting aside the verdict and granting a new trial, and section 5285, providing that the motion for a new trial must set forth the grounds or causes therefor, the failure to give an instruction as to reasonable doubt cannot be reviewed, unless brought to the trial court's attention by a motion for a new trial, since the Supreme Court does not set aside verdicts and grant new trials, except as an incident to reversing judgments; and section 5231 therefore refers exclusively to the procedure in trial courts.

6. CRIMINAL LAW (§ 1056)—APPEAL—RESERVATION OF GROUNDS OF REVIEW—EXCEPTIONS.

Under Rev. St. 1909, § 5231, where the failure to charge in a felony case as to reasonable doubt is made the ground of a motion for a new trial, it is reviewable on appeal, though no exception to the instructions is taken, notwithstanding section 2081, providing that no exception shall be taken in an appeal or writ of error to any proceeding in the circuit court, except such as shall have been expressly decided by that court, since, the statute having relieved defendant of the duty of requesting instructions, he is not bound to suggest instructions by excepting to their omission.

Faris, J., dissenting in part.

Appeal from Circuit Court, Oregon County; W. N. Evans, Judge.

F. M. Douglas was convicted of murder in the second degree, and he appeals. Reversed and remanded.

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 12 years in the pentitentiary.

For a consideration of such issues as are here presented, it will only be 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. G. Burnette, in Oregon county, Mo., on August 29, 1909. The evidence of premeditation consisted mostly in the purchase by 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 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 be sewed on, and that he was confined to his bed for several weeks.

There were no eyewitnesses 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, shot 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 and reasonable doubt.

H. D. Green, of West Plains, S. M. Meeks, of Thayer, and Geo. M. Miley, of Harrisburg, Ill., for appellant. John T. Barker, Atty. Gen., and Wm. M. Fitch, Asst. Atty. Gen., for the State.

I. Reasonable Doubt.

BROWN, J. (after stating the facts as above).

The defendant did not, in writing

167 S.W. 554

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 vital 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, R. S. 1909.

The doctrines 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 law of presumption of innocence, if the court has fully instructed on the subject of reasonable doubt. State v. Maupin, 196 Mo. 164, loc. cit. 175, 176, 93 S. W. 379; and State v. Dudley, 245 Mo. 177, loc. cit. 184, 149 S. W. 449. 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, J., 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, 59 S. W. 75, and State v. Gullette, 121 Mo. 447, loc. cit. 458, 26 S. W. 354.

When a defendant is entitled to an instruction...