State v. Foster

Decision Date14 October 1946
Docket Number39962
Citation197 S.W.2d 313,355 Mo. 577
PartiesState v. Raymond Albert Foster, Appellant
CourtMissouri Supreme Court

Motion for Rehearing or to Transfer to Banc Overruled November 11 1946.

Appeal from Circuit Court of City of St. Louis; Hon. William B Flynn, Judge.

Affirmed.

Morris A. Shenker and Louis E. Zuckerman for appellant.

(1) Instruction 4 is erroneous, misleading, inadequate and places the burden of proof of the defense of self-defense upon the defendant, by requiring him to "establish" beyond a reasonable doubt that he had the right to self-defense. State v. Davis, 116 S.W.2d 110, 342 Mo. 594; State v. Malone, 327 Mo. 1217, 39 S.W.2d 786; Morris v. E. I. DuPont de Nemours & Co., 173 S.W.2d 39. (2) Insofar as Instruction 4 said: "The defendant has interposed as a defense what is known in law as the right of self-defense," then sets forth its conclusions as to the evidence in the case, and then tells the jury that they cannot acquit "on the ground of self-defense, even though you may believe the defendant thought he was in danger," in the last two lines thereof, it is erroneous and a comment on the evidence, since it singles out portions of evidence in the record and places the court's own interpretation thereon. State v. Davis, supra; State v Malone, supra; Morris v. E. I. DuPont de Nemours & Co. supra; State v. Clough, 327 Mo. 700, 38 S.W.2d 36; State v. Williams, 337 Mo. 884, 87 S.W.2d 175, 100 A.L.R. 1503; State v. Irvin, 324 Mo. 217, 22 S.W.2d 772; State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556; State v. Aitkens, 179 S.W.2d 84; State v. Bradley, 179 S.W.2d 98; Secs. 4070(4), 4379, 4380, R.S. 1939; State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473. (3) The court erred in giving Instruction 2, on manslaughter, because: It failed to properly, adequately and fully define and set out all of the elements that would necessarily have to be found by the jury, before the jury could convict of manslaughter. (4) It erroneously told the jury that the jury must find that the defendant "intentionally shot" and killed deceased "without malice" and "without premeditation", but those terms were not necessary elements of the offense of manslaughter, under the facts in this case, and thus the court improperly directed the jury's attention to such improper matters, tending to mislead and confuse the minds of the jurors. (5) The court failed to require the jury to find that the shooting, if any, was "willful and unlawful." (6) This instruction erroneously restricted his self-defense theory to a defense of his person only, and ignored entirely his evidence that he believed he was being held up and was defending $ 574 of his money from such robbery. (7) The court erroneously restricted the instruction on manslaughter to "intentional killing," whereas the evidence showed that it was not an "intentional killing," but was due to accident while defendant was in the defense of his person and his money from assault and robbery, as he thought at the time; but the court erroneously failed to instruct the jury as to manslaughter due to "culpable negligence." State v. Brinkley, 193 S.W.2d 49; State v. Bradley, 179 S.W.2d 98. (8) The court erred in giving Instruction 3, because: It left the jury with a roving commission to determine whether defendant was guilty of "any crime." (9) There was no competent evidence in the record showing that defendant intended to kill Lorts, but by "mistake" killed Jennings. The evidence was that Jennings was "accidentally" killed. The evidence to the contrary of Officer Redmond, giving his "interpretation" of what defendant meant on such material issue, being all there is in the record upon which this instruction is based. State v. Irvin, 324 Mo. 217, 22 S.W.2d 772. (10) The court erred in giving Instruction 5, because: It improperly limited the defense of accidental shooting to that part of the struggle which took place on the floor of the restaurant, and improperly limited the defense of excusable homicide, since the whole affair was one continuous encounter from the time defendant was assaulted by Lorts while sitting at the counter drinking coffee until Officer Redmond removed Lorts from over the prostrate body of defendant on the floor. (11) This instruction is a comment on the evidence, and restricts "excusable homicide," that is, "accident," to the struggle on the floor. It was all one continuous struggle, and should not have been so limited. State v. Brinkley, supra; State v. Crowley, supra. (12) The court erred in giving Instruction 7, because: It fails to require the jury to reject only such testimony as the jury believes to be false; the words, "such testimony as the jury believe to be false" being entirely omitted. The jury could not arbitrarily reject "all" of a witness' testimony, because it believed a portion to be false; it had to weigh as evidence all other portions thereof which it believed to be true. (13) It was error to give this instruction merely because there was conflict in the testimony, since it was not requested by defendant. State v. Hayes, 262 S.W. 1034. (14) The jury were not told that before they can reject testimony they must find it was both "knowingly and willfully" given on a material issue; the word "wilfully" being entirely omitted therefrom. State v. Palmer, 88 Mo. 568; State v. Jordan, 225 S.W. 905, 285 Mo. 62. (15) This instruction was particularly prejudicial because defendant alone testified as to his version of the attack upon him, and this instruction had the effect of singling out evidence and commenting thereon by the court. State v. Willard, 142 S.W.2d 1046, 346 Mo. 773; State v. Bradley, 179 S.W.2d 98, 352 Mo. 780. (16) The court erred in failing to instruct the jury on the law of circumstantial evidence as applicable to this case. State v. Bennett, 297 Mo. 190, 248 S.W. 924; State v. Hancock, 340 Mo. 918, 104 S.W.2d 241. (17) The court erred in failing to instruct the jury properly and adequately on all the law applicable to accidental shooting. State v. Burnett, 188 S.W.2d 51; State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473; State v. Sumpter, 184 S.W.2d 1005. (18) Where required by the law of the case, such an instruction must be given, whether requested or not. State v. Crowley, supra; State v. Aitkens, 179 S.W.2d 84. (19) And that duty implies the necessity of giving a correct instruction on accident. State v. Aitkens, 179 S.W.2d 84; State v. Bradley, 179 S.W.2d 98. (20) The rule is that trial courts must instruct on all issues arising on the evidence in the case, whether requested or not; and where there is any evidence to support a defense or an issue, it must be presented to the jury by an accurate instruction. State v. Brinkley, 193 S.W.2d 49; Sec. 4070 (4), R.S. 1939; State v. Shiles, 188 S.W.2d 7; State v. Robinson, 185 S.W.2d 636; State v. Burnett, 188 S.W.2d 51; State v. Mills, 179 S.W.2d 95; State v. Heath, 221 Mo. 565, 121 S.W. 149. (21) The court must give a proper instruction, howsoever the evidence got into the case, and even though defendant rely upon inconsistent defenses or deny it. State v. Wright, 175 S.W.2d 866; State v. Bidstrup, 237 Mo. 273, 140 S.W. 904; Sec. 4379, R.S. 1939. (22) "Drawing a gun in self-defense" has been held to be a "lawful act" in this State. State v. Crowley, 345 Mo. 1177, 139 S.W.2d 473. (23) The two-word definition of "excusable homicide" as "accidental killing" was inadequate; but further definition of "accidental killing" was lacking. State v. Brinkley, 193 S.W.2d 49. (24) The court erred in failing to instruct the jury that if deceased was killed as a result of negligence on the part of the defendant, that defendant should be found not guilty, for that, if defendant negligently handled the gun, to the extent of culpable negligence, while defending himself against the assault of Lorts, defendant was entitled to an instruction on that issue. State v. Aitkens, 179 S.W.2d 84. (25) The court erred in limiting its instruction on manslaughter to an "intentional" killing, and in failing to submit the charge of manslaughter on accidental killing, while defending himself from the assault of Lorts upon him. This instruction did not submit the defense, and the jury had no alternative but to find that the killing (?) was "intentional." State v. Fielder, 330 Mo. 747, 50 S.W.2d 1031; State v. Bartley, 84 S.W.2d 637, 337 Mo. 229. (26) The court erred in overruling defendant's demurrer to the evidence offered at the close of the entire case because, without the testimony of Frank Stubitz, which was itself incompetent and erroneously admitted, there was no evidence either of second degree murder or manslaughter based on an "intentional killing." His testimony invaded the province of the jury, because the question of whether or not the killing was "intentional" was for the jury, and no witness may directly testify that the killing was "intentional," but that was the effect of his testimony. State v. Evans, 133 S.W.2d 389, 345 Mo. 398; State v. Sterling, 72 S.W.2d 70. (27) The witness, Frank Stubitz, was erroneously allowed to perform an experiment, and to comment thereon in the presence of the jury, on an ultimate fact in the case, that is, whether or not the killing was "intentional," which only the jury had the right to decide from all the facts and circumstances in evidence. Stubitz was erroneously permitted to decide this for them in the State's rebuttal evidence. State v. Allison, 51 S.W.2d 51, 330 Mo. 773, 85 A.L.R. 471. (28) Stubitz was not required even to show that the gun was in the same condition when the experiment was performed in the courtroom as it was at the time of the shooting thereof in the restaurant, and this was error. State v. Leonard, 182 S.W.2d 548; State v. Baublitz, 27 S.W.2d 16, 324 Mo. 1190; State v. Bass, 157...

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