State v. Tolson
| Decision Date | 11 October 1948 |
| Docket Number | 40655 |
| Citation | 215 S.W.2d 438,358 Mo. 419 |
| Parties | State of Missouri, Respondent, v. Thomas Tolson, Jr., Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied December 13, 1948.
Appeal from Chariton Circuit Court; Hon. G. Derk Green Judge.
Affirmed.
Errol Joyce for appellant.
(1) The court erred to the great prejudice of the defendant in giving instruction No. three at the request of the state and over the objection of the defendant. As there were a number of eyewitnesses to this occurrence, including Ruby Anderson, a cousin of the deceased who testified fully for the state there was no reason or basis for a presumption of malice and for that reason Instruction 3 was erroneous and prejudicial. State v. Cole, 304 Mo. 105, 263 S.W. 207; State v. Solan, 207 S.W. 782; State v. Burns, 278 Mo. 441, 213 S.W. 114; State v. Malone, 327 Mo. 1217, 39 S.W.2d 786; State v. Bolhofner, 336 Mo. 1155, 82 S.W.2d 894; State v. Cole, 213 S.W. 110. (2) As there was here proof of facts tending to show the killing was excusable or justifiable on the ground of self-defense, and that defense was submitted by Instruction 5 the state's Instruction 3 conflicted therewith, was confusing to the jury and put an excessive and unlawful burden on the defendant to overcome to be entitled to a verdict of acquittal. State v. Miller, 346 Mo. 946, 143 S.W.2d 241; State v. Nolan, 192 S.W.2d 1016; State v. Lyle, 353 Mo. 386, 182 S.W.2d 530; State v. Strawther, 342 Mo. 618, 116 S.W.2d 133; State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701. (3) Presumptions are procedural matters for the court to decide and are not matters for the consideration of the jury and hence not proper matters to be covered by instructions to the jury. Instruction 3 here is prejudicially and reversibly erroneous in that respect. State ex rel. Alton R. Co. v. Shain, 346 Mo. 846, 143 S.W.2d 233; Gibson v. Metropolitan Life Ins. Co., 147 S.W.2d 193; In re Weingart's Estate, 170 S.W.2d 972; Ross v. Pendergast, 353 Mo. 300, 182 S.W.2d 307; State ex rel. Nelson v. Hammett, 203 S.W.2d 115; State ex rel. Thompson v. Shain, 349 Mo. 1075, 163 S.W.2d 967. (4) The argument of the prosecuting attorney wherein he asked the jury "are you going to permit these niggers to arm themselves with knives and guns and terrorize the community" went outside the record and constituted an unwarranted and inflammatory appeal to race prejudice so as to constitute prejudicial and reversible error. State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87; State v. Sheeler, 300 S.W. 318; State v. Isaacs, 187 S.W. 21; State v. Mosier, 102 S.W.2d 620; State v. Webb, 254 Mo. 414, 162 S.W. 622; State v. Taylor, 8 S.W.2d 29; Calloway v. Fogel, 213 S.W.2d 405.
J. E. Taylor, Attorney General, and W. Brady Duncan, Assistant Attorney General, for respondent.
(1) The court did not err in overruling Assignment VII of defendant's motion for new trial, which is points I, II, and III of the Assignment of Errors in his brief. Sec. 4125, Mo. R.S.A.; State v. Dollarhide, 87 S.W.2d 156, 337 Mo. 962; State v. Kaner, 93 S.W.2d 671; State v. Foster, 197 S.W.2d 313; State v. Ellis, 159 S.W.2d 675; State v. Bolhofner, 82 S.W.2d 874, 336 Mo. 1155; State v. McGee, 83 S.W.2d 98, 326 Mo. 1082; State v. Solan, 207 S.W. 783. (2) The court did not err in overruling appellant's Assignment No. XI in his motion for new trial concerning the argument of the prosecuting attorney. State v. Martin, 56 S.W.2d 137; State v. Turlington, 204 S.W. 821, 200 Mo.App. 192; State v. Greer, 12 S.W.2d 87, 321 Mo. 589; State v. Lynn, 23 S.W.2d 139; State v. Cade, 34 S.W.2d 82; State v. Johnson, 72 Mo.App. 232; State v. Gensler, 295 S.W. 1081; State v. Stoughton, 189 S.W. 601; State v. Tucker, 96 S.W.2d 21, 339 Mo. 101. (3) Assignments of Error in motion for new trial not carried forward in appellant's brief are waived. State v. Kenyon, 343 Mo. 1168, 126 S.W.2d 245.
Bradley, C. Dalton and Van Osdol, CC., concur.
Defendant was convicted of murder in the second degree; punishment was fixed by the jury at 10 years in the penitentiary; his motion for a new trial was overruled and he appealed.
Shortly after midnight of October 27, 1946, defendant struck and killed Elmer Lee Collins with a knife in Brunswick, Chariton County. Defendant and deceased were young colored men, both resided in Brunswick; had known each other since they were boys. Ruby Anderson, colored, operated a colored restaurant in Brunswick and the trouble occurred in the Anderson restaurant. There had been no prior trouble between defendant and deceased. Defendant was in the music room of the restaurant and was putting a nickel in the music machine. Deceased came in and shoved him; defendant asked deceased why he was doing that; deceased shoved him again and said for him "to get the hell out of the way." Defendant then hit deceased; a scuffle followed. They were separated deceased was then taken by the restaurant proprietor Anderson out of the music room into the adjoining dance room. Defendant also went into the dance room. Deceased "got away from Anderson" and "rushed toward" defendant; "had his hand drawn back", and said, according to defendant, "I will get the son of a bitch." Defendant struck deceased on the head with a knife; the brain was entered by the blade and deceased died in about half an hour.
Error is assigned on instruction No. 3 and on argument by the prosecuting attorney, and an assistant attorney general.
The trial court instructed on murder in the second degree, on manslaughter, and on self defense. Instruction No. 3 was the instruction on murder in the second degree. This instruction, in part, follows:
The instruction went on to hypothesize the facts, directing a verdict of murder in the second degree if found that defendant "wilfully, premeditatedly and of his malice aforethought" stabbed and killed deceased. The complaint is on that part of the instruction reading, "malice, as used here, may be presumed from the intentional use of a deadly weapon in a manner likely to produce death."
Respondent makes two contentions respecting instruction No. 3. First, that under Sec. 4125 R.S. 1939, Mo. RSA, Sec. 4125, the complaint on the instruction is not properly preserved for review in the motion for a new trial, and second, that the instruction was proper. Sec. 4125 provides that the motion for a new trial "must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor." The assignment in the motion for a new trial on the instruction follows: "(1) That the instruction is not warranted by the facts, not applicable to the fact and is not supported by the evidence; (2) that it is erroneous, legally insufficient and unauthorized; (3) that it illegally shifts the burden of proof to defendant of essential averments of the information; (4) that it erroneously declares a rule of procedure that imposes an improper function upon the jury; (5) that it is confusing and calculated to, and did mislead the jury; (6) that said instruction fails to cover the law of second degree murder; (7) that said instruction does not define or adequately, properly or correctly inform and advise the jury on the question of excusable or justifiable homicide."
Defendant attacks only a portion of instruction No. 3. Such being so the motion for a new trial, under Sec. 4125, should have pointed out the portion complained of, and not having done so the assignment is insufficient. State v Peterson (Mo. Sup.), 154 S.W.2d 134, l.c. 138, and cases there cited. In the Peterson case, Sec. 4125 was quoted as to the requirements of a motion for a new trial in a criminal case and then the court said: "This requires that the motion point out the particular portion of the instruction objected to and the specific grounds for the alleged error." In State v. Bolhofner, 336 Mo. 1155, 82 S.W.2d 894, an instruction on murder in the second degree was given. The instruction told the jury that one "who wilfully, that is, intentionally, uses upon another at some vital part, a deadly weapon, as a pistol, must in the absence of qualifying facts, be presumed to know that the effect is likely to be death; and knowing this, must be presumed to intend death, which is the probable and ordinary consequence of such an act." The assignment in the motion for a new trial was that It was held that the assignment was not sufficient under Sec. 4125. See also State v. Dollarhide, 337 Mo. 962, 87 S.W.2d 156, 157, and cases there cited; State v. Kaner, 338 Mo. 972, 93 S.W.2d 671, 673; ...
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