State v. Oliver
| Decision Date | 13 January 1975 |
| Docket Number | No. 9663,9663 |
| Citation | 520 S.W.2d 99 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. William C. OLIVER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John C. Danforth, Atty. Gen., Scott A. Raisher, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
J. Martin Hadican, Madigan, Hadican & Maloney, St. Louis, for defendant-appellant.
Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.
An indictment filed in the Circuit Court of Franklin County charged defendant with murder in the first degree. The cause reached our bailiwick upon a change of venue to Phelps County where a jury found defendant guilty of murder in the second degree and assessed his punishment at 25 years' imprisonment. He appealed. we reverse and remand.
There was no direct testimony of eyewitnesses connecting defendant with the shooting of his estranged wife. Although most of the evidence against defendant may be classified an circumstantial, we have not been called upon to test the sufficiency of the evidence to sustain the conviction. The three points relied on by defendant concern, in order, the averred erroneousness of Instructions No. 6, No. 1 and No. 2. Because of our disposition of the appeal and the fact the instructions on retrial will be governed by MAI-CR, we attend only to Instruction No. 6, which reads: 1 No other instruction regarding or defining circumstantial evidence was given.
Testimony was adduced by the state that defendant had made statements tantamount to admitting he had killed his wife. This constituted direct evidence of his guilt. State v. Stevens, 467 S.W.2d 10, 25(24) (Mo.1971). With direct evidence on hand, even though most of the state's evidence was circumstantial, it was not mandatory that the trial court give a circumstantial evidence instruction. State v. Orr, 493 S.W.2d 374, 376(7) (Mo.App.1973). Nevertheless, though it was not required that the trial court give an instruction on circumstantial evidence, since it did so it should have been correct. State v. Salmon, 216 Mo. 466, 529, 115 S.W. 1106, 1125(8) (1909).
The cases are replete with pronouncements that when the state relies on circumstantial evidence, the circumstances, to warrant conviction, must not only be consistent with each other and the hypothesis of defendant's guilt but must point so clearly and satisfactorily to his guilt as to exclude every hypothesis of innocence (State v. Morse, 503 S.W.2d 450, 451(2) (Mo.App.1973)), and whether required or not, if an instruction on circumstantial evidence is given, the foregoing pronouncements are necessary and required elements of the charge. State v. Gray, 163 Mo.App. 696, 147 S.W. 510(1) (1912). "An instruction on circumstantial evidence should, in substance, 2 advise the jury that 'the circumstances must be consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothesis, except that of guilt." State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 131.' State v. Huff, 353 Mo. 791, 798, 184 S.W.2d 447, 451(8) (1945). Accord, State v. Burke, 462 S.W.2d 701, 703--704 (Mo.1971); MAI-CR 3.42. Instruction No. 6 utterly failed to advise the jury of the foregoing. That was prejudicial and reversible error. State v. Hoskins, 515 S.W.2d 502, 503(3) (Mo.1974).
The judgment is reversed and the cause remanded.
All concur.
On Motion for Rehearing or To Transfer to the Supreme Court of Missouri
Respondent-state in its motion for rehearing or to transfer to the Supreme Court of Missouri asserts for the first time that defendant failed to properly preserve his assignment anent Instruction No. 6 for appellate review because he 'failed to set forth with sufficient...
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