State v. Smart, 57293

Citation485 S.W.2d 90
Decision Date11 September 1972
Docket NumberNo. 57293,No. 1,57293,1
PartiesSTATE of Missouri, Respondent, v. Doris SMART, Appellant
CourtUnited States State Supreme Court of Missouri

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Robert G. Duncan, and Austin F. Shute, Kansas City, for appellant.

WELBORN, Commissioner.

A jury found Doris Smart guilty of murder in the second degree and fixed her punishment at 17 years' imprisonment. She has appealed from the ensuing judgment and sentence.

According to the state's evidence, the only evidence presented at the trial, Doris Smart shot her husband, Jack L. Smart, Sr., in their house near Osceola three times with a .30--.30 rifle on the evening of August 21, 1970. The shooting culminated a stormy and frequently violent existence of the deceased, his wife and their four children, with the deceased the violent actor. On the day of his death, he had displayed his anger because the family had gone to Clinton in the morning without preparing a meal for him. In the afternoon, Jack was trying to teach his nine-year-old son to shoot and slapped him on the head whenever he sighted with the wrong eye. Doris observed this and told her daughter: 'Don't be surprised if something happens tonight.' Later she told the daughter, 'Don't be surprised if something happens tonight because I might kill him.' She showed the daughter several new bullets and told her they would not jam in the gun.

In the evening, Doris and her husband, both of whom had been drinking, went hunting for a short time and returned to the house. Jack later got the family engaged in a chicken plucking job which he thought should have been done earlier. At the conclusion of the job, Jack and his 13-year-old son, Jack, Jr., became involved in an argument. Jack knocked his son down in the living room of the house and started choking him. His daughter said, 'Do something, he is going to kill him.' Jack ordered the girl to get a belt and she went to a bedroom for it. Doris also went to the bedroom and got a .30--.30 rifle. When she returned to the living room with the rifle, the father and son had separated. Doris told Jack, Sr. to get out and he said he was leaving. He started to go but then turned around and took a step back toward the living room. Appellant fired a shot which struck her husband. He fell to the floor and said, 'Honey, don't do it.' She fired two more shots into his body as he lay on the floor.

Appellant then told her son to get a .22 rifle and shoot her in the arm 'to make it look more like self-defense.' The boy did as directed. The sheriff was called. Jack, Sr. was dead when the sheriff arrived.

Appellant was charged with murder in the first degree. At the trial, the court instructed on murder in the first degree, second degree, manslaughter and justifiable homicide.

On this appeal, the instruction on murder in the second degree, the offense of which the appellant stands convicted, is attacked. The here pertinent of the instruction was as follows:

'* * * If you find and believe from the evidence beyond a reasonable doubt:

'First, that on August 21, 1970, in the County of St. Clair, State of Missouri, the defendant caused the death of Jack Lee Smart by shooting him, and

'Second, that the defendant intended to do serious bodily harm to Jack Lee Smart, and

'Third, defendant did not do so in sudden fear or agitation provoked by physical violence committed or threatened to be committed by Jack Lee Smart to the person of the defendant, or her children, then you will find the defendant guilty of murder in the second degree.'

Appellant contends that this instruction omits required findings by the jury of premeditation and malice aforethought which she contends are essential elements of the crime of murder in the second degree.

Except for the substitution of intent to do great bodily harm for intent to kill in paragraph second, this instruction follows the form suggested by the Committee of the Missouri Bar on Criminal Pattern Instructions. That committee's suggested form of instruction for murder in the first degree was recently found sufficient by this court in State v. Marston, Mo., 479 S.W.2d 481, decided April 10, 1972. The attack in that case was similar to that here made, i.e., that the instruction failed to use terminology which according to prior appellate court decisions was essential to encompass all of the elements of the offense. The Marston case makes clear that the courts are not bound to continue to instruct in criminal cases in the stilted, unnatural language of instructions which have met with approval in the past. That language is not immutable and a change which adequately and accurately describes the offense is not to be condemned simply because it ignores the long-accepted terminology.

What has been described as the 'classic definition' (State v. Tettamble Mo.Sup., 394 S.W.2d 375, 380(12--14)) of murder in the second degree is 'the killing of a human being wilfully, premeditatedly, and with malice aforethought, but without deliberation.' State v. Bruton, Mo.Sup., 383 S.W.2d 525, 528(2--4). The instruction here did not require expressly a finding of 'premeditation' or 'malice aforethought.' In the Marston case, premeditation as an element of murder in the first degree was found to have been adequately encompassed by language of the instruction which also supplied the issue of deliberation. Such language is not to be found in the instruction here under consideration, inasmuch as deliberation is the element which distinguishes first and second degree murder. State v. Davis, Mo.Sup., 400 S.W.2d 141, 145(1--4).

Under the old instruction employing the term 'premeditatedly' the court was obliged also to define the term for the benefit of the jury. State v. LaMance, 348 Mo. 484, 154 S.W.2d 110, 118--119(10). The common definition of the term was given as "Premeditation' means thought of beforehand, any length of time, however short.' State v. Kilgore, 70 Mo. 546, 555. See State v. Baber, Mo.Sup., 297 S.W.2d 439, 441(1--4). Under the instruction in this case, the jury were required to find that appellant shot her husband and that she intended to cause him serious bodily harm. An affirmative finding on such submission necessarily involves a finding that the appellant thought of the shooting before she did it. The jury were required to find the facts which necessarily demonstrated premeditation and, therefore, the instruction is not objectionable on the grounds that the element was not specifically mentioned.

On the issue of 'malice' or 'malice aforethought,' that again is an element of murder, including murder in the second degree. State v. Wieners, 66 Mo. 13; State v. Mosley, Mo.Sup., 415 S.W.2d 796, 798(1, 2). Malice, however, does not mean spite or ill will, but the intentional doing of a wrongful act without just cause or excuse, and not spite or ill will. State v. Williams, Mo.Sup., 323 S.W.2d 811, 813(5--8); State v. Ayers, Mo.Sup.,305 S.W.2d 484, 486(1--3). The instruction here required a finding that appellant shot her husband, intending to cause him serious bodily harm. The instruction further hypothesized the provocation which would have excluded malice and avoided a conviction for murder in the second degree. Again the instruction properly placed before the jury the factual elements which if found by the jury would produce the legal conclusion that appellant had acted with malice and was therefore guilty of murder in the second degree.

Appellant attacks the manslaughter instruction because it omitted any reference to provocation. The instruction given on this subject did not follow the suggested pattern instructions. As with the suggested pattern voluntary manslaughter instruction, there is no reference to provocation which would permit a finding of action in the heat of passion, negativing malice, and therefore authorizing a finding of guilt of manslaughter.

In State v. Gore, 292 Mo. 173, 237 S.W. 993, the court held that under the definition of manslaughter enacted by the General Assembly in 1919 (Laws 1919, p. 256), abolishing degrees of manslaughter and eliminating any reference to the common law offense, 'heat of passion' was no longer an element of the crime and need not be included in an instruction defining the offense. 237 S.W. 996--997(8--10). The current definition of the offense (§ 559.070, RSMo 1969, V.A.M.S.) is the 1919 enactment and the Gore holding answers the objection here raised. See State v. Clark, Mo.Sup., 412 S.W.2d 493, 496; State v. Brooks, Mo.Sup., 360 S.W.2d 622, 628--629(13).

None of the cases cited by appellant on this point involves the content of a manslaughter instruction after the 1919 enactment, supra. See State v. Williams, Mo.Sup., 442 S.W.2d 61.

As above noted, the manslaughter instruction was not in the form of the suggested pattern instructions, is were the first and second degree murder instructions. The mixing of the old and the new resulted in the use in the manslaughter instruction of terms such as 'wilfully and feloniously,' 'without malice' and 'without premeditation.' Such terms were not defined and appellant contends that the failure to do so constituted error. The term 'wilfully' is frequently the subject of definition by instruction, but the definition usually given is 'intentionally, not accidentally.' State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 321(16). This is the common meaning of the term. It was not here used in a technical or different sense, so no definition was required. State v. Harkins, 100 Mo. 666, 13 S.W. 830, 831(2). The term 'feloniously' is not required to be defined because it describes the grade of the offense and is not an element of the crime. State v. Barton, 142 Mo. 450, 44 S.W. 239. Had appellant been found guilty of manslaughter, she would not be heard to complain of the failure to define malice and premeditation. State v. Rack, Mo.Sup., 318 S.W.2d 211, 216(5, 6)...

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  • State v. Neff
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    ...not to consider the fact that the defendant had not testified even when the defendant objected to such an instruction. State v. Smart, 485 S.W.2d 90, 95 (Mo.1972); State v. DeWitt, 186 Mo. 61, 84 S.W. 956, 957 (1905); see also State v. Hutchinson, 458 S.W.2d 553, 556-59 (Mo. banc 1970) (Don......
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