State v. Harris

• Decision Date: 07 February 1911
• Citation: 232 Mo. 317,134 S.W. 535
• Parties: STATE v. HARRIS.
• Court: Missouri Supreme Court

134 S.W. 535

232 Mo. 317

STATE v. HARRIS.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

1. CRIMINAL LAW (§ 824) — INSTRUCTIONS — REQUESTS.

Under Rev. St. 1909, § 5231, making it the duty of a trial court, "whether requested or not," to "instruct the jury in writing upon all questions of law arising in the case" upon which information is necessary in giving their verdict, it is not error to fail to instruct on collateral questions, in the absence of a request by the defendant.

2. CRIMINAL LAW (§ 769)—INSTRUCTIONS— SUFFICIENCY—COVERING WHOLE OF PROPOSITION.

Whenever the court in a criminal case undertakes to give instructions upon questions of law as required by Rev. St. 1909, § 5231, the instructions, whether given by the court of its own motion or by request, must cover the questions fully.

3. CRIMINAL LAW (§ 815)—INSTRUCTIONS— FLIGHT—EXPLANATION.

Where the evidence as to defendant's guilt was conflicting, and no clear motive for the crime was shown, an instruction that flight by defendant was a circumstance to be considered against him, but which left out of view defendant's explanation of such flight, was erroneous.

Appeal from Criminal Court, Jackson County; E. E. Porterfield, Judge.

Thomas Harris was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Moore & Handy and H. S. Kimbrell, for appellant. E. W. Major, Atty. Gen., and Jno. M. Dawson, Asst. Atty. Gen., for the State.

FERRISS, J.

The defendant was convicted in the criminal court of Jackson county of murder in the first degree, and received a life sentence in the penitentiary. He appeals to this court to reverse the judgment because of alleged error committed by the trial court in instructing the jury on the question of flight.

The facts material to a proper consideration of the question raised are as follows: On the 5th day of September, 1908, at 9:30 p. m., one Frank Smith was shot to death on Eighteenth street, Kansas City. The deceased had joined a crowd which had gathered on the scene of an affray which involved the serious beating of a negro boy, driver of an express wagon. In the midst of the excitement, the deceased, who had no part in the affray, was shot. Eyewitnesses for the state testified that defendant did the shooting. Eyewitnesses for the defense, including the defendant, testified that defendant did not shoot the deceased. Shortly after the shooting, the defendant went to Argentine, Kan., from thence to Junction City, Kan., and in about two weeks returned to Kansas City and gave himself up to the authorities. Defendant introduced evidence to the effect that he fled because he had good reason to fear mob violence, which, there is evidence to show, had been incited against him on account of this killing; also, that he had business in Argentine, and was advised there that it would be unsafe to return at that time.

If the testimony for defendant is believed, an explanation of the flight, consistent with innocence, is given. If this evidence is not believed, the flight stands unexplained. On this point the court gave the following instruction: "Flight of the defendant is a circumstance to be taken into consideration in connection with all the other facts and circumstances in evidence, and if the jury find and believe from the evidence that the defendant, after the commission of the homicide alleged in the information, fled from his usual place of abode for the purpose of avoiding arrest and trial for said offense, they may take this fact into consideration in determining his guilt or innocence." The defendant contends that this instruction is erroneous because it fails to "give the defendant the benefit of his explanation or his reasons for leaving the state." The state contends: (1) That the instruction is proper; (2) that the defendant is precluded from now objecting that the instruction is improper and incomplete, by reason of the fact that he did not ask any instruction on this point.

We have, then, two propositions presented: First. Can the defendant complain in this court of the above instruction, which he concedes is correct as far as it goes; he having failed to ask a further instruction in the court below? Second. If this question shall be answered in the affirmative, is there reversible error in the instruction as given?

As to the first proposition: The statute imposes upon the trial court the duty, "whether requested or not," to "instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict." Rev. St. 1909, § 5231. Numerous decisions of this court hold that, in the absence of a request from the defendant, it is not reversible error to fail to instruct on collateral questions. Whether the question of flight is collateral we are not called upon to decide in this case. The defendant rests his contention upon the proposition that when the court, either of its own motion, or on request from the state, instructs upon a question of law, such instruction must fully cover the proposition; and that, inasmuch as the court in this case undertook to instruct upon the question of flight, the defendant, without request upon his part, is entitled to as full and complete an instruction as he could properly have claimed had he requested it. We think this proposition is sound. If an instruction offered by the defendant is refused because defective in form or phraseology, it then becomes the duty of the court to give a proper instruction covering the point. State v. Kilgore, 70 Mo. 546; State v. Reed, 154 Mo. 129, 55 S. W. 278. If the defendant requests it, clearly the court must instruct in a proper case, and must fully cover the point. On principle, whenever the court in a criminal case undertakes to instruct on a question of law for the guidance of the jury "in giving their verdict,"...