The State v. Douglas
| Decision Date | 26 May 1914 |
| Parties | THE STATE v. F. M. DOUGLAS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Oregon Circuit Court. -- Hon. W. N. Evans, Judge.
Reversed and remanded.
H. D Green, S. M. Meeks and George M. Miley for appellant.
There was no instruction given upon the subject of reasonable doubt and this was reversible error. State v. Gullett, 121 Mo. 447. The only place in all the instructions where the words "reasonable doubt" are used is in instruction nine in connection with the subject of defendant's good character. In all the other instructions the subject of reasonable doubt is prejudicially omitted, notably in instruction three. There was no instruction upon the presumption of innocence, and this was particularly injurious in this case because of the fact that the jury were instructed in instruction number four as to a presumption against the defendant. While an instruction as to reasonable doubt need not be applied seriatim to each item, it is necessary to give a general instruction upon the subject of reasonable doubt, applicable to all the testimony. State v. Good, 132 Mo. 114; State v. Byscher, 179 Mo 140. In a criminal prosecution it is the duty of the trial court to give all necessary instructions whether they are requested or not. State v. Branstetter, 65 Mo. 149; State v. Rufus, 149 Mo. 406. It was error for the court to fail to instruct the jury upon the subject of reasonable doubt, whether such instruction was requested or not. State v. Clark, 147 Mo. 20. The defendant is entitled to an instruction upon the presumption of innocence and the failure to give it in this case was error. State v. Moxley, 102 Mo. 374; Sec. 5231, R. S. 1909; State v. Fannon, 158 Mo. 156; State v. Conway, 241 Mo. 271.
John T Barker, Attorney-General, and William M. Fitch, Assistant Attorney-General, for the State.
(1) It is the office of the bill of exceptions to preserve the objections made to matters ruled upon by the court during the progress of the trial. If those objections are not made, or if made, are not excepted to by the party against whom made then there is nothing preserved for the review of the appellate court. In such case a proper motion for a new trial may be filed, but the bill of exceptions proper, being the receptacle which preserves the matters sought to be brought to the appellate court for consideration, being silent as to such matters, the motion for a new trial cannot revive such matters. It is the office of the bill of exceptions to preserve the exceptions actually made and taken to the ruling of the court at the time such rulings were made during the progress of the trial. It is the office of the motion for a new trial to bring those exceptions together and present them in general or concrete form to the trial court; so that if an exception is properly taken to an adverse ruling of the court during the trial and that exception is not kept alive and presented to the trial court by the motion for a new trial, then such question cannot be considered by the appellate court; and conversely, we might say, if no exception were taken to the action of the court during the trial of the case to an adverse ruling of the court, then, notwithstanding the fact that the motion for a new trial may set out such ruling as error, still if there is no exception preserved in the bill of exceptions to the alleged erroneous ruling of the court, the motion for a new trial alone will not preserve the matter for the appellate court. It thus appears that it is necessary in order to preserve an exception for the consideration of the appellate court that, first, an objection must be made and exception saved to the ruling of the court at the time such ruling was made, all of which must be shown by, and preserved in, the bill of exceptions; and, secondly, these matters must be carried to the attention of the court by the motion for a new trial. If this procedure is not had, then it follows logically that the question assigned as error cannot be reviewed by the appellate court; and thirdly, the action of the court in overruling the motion for a new trial must be excepted to, and such exception be shown by the bill of exceptions. There is great harmony in the decisions of this court on this question. The only case that is out of line with the reasoning above set out, as applied to the right, power, jurisdiction or authority of this court to review instructions in a case, is State v. Conway, 241 Mo. 271. We are convinced that the doctrine of that case, carried to its logical sequence, is at war with the fundamental rule of such procedure, as declared by this court since its organization. The main doctrine of the above case is so completely at variance with what we conceive to be the fundamental rule of law in such cases, that we beg leave to submit for the consideration of the court the authorities which establish, in an unbroken line, the true, logical and correct rule. Without beginning at the very earliest cases, we will pass to those cases which were decided after what is now section 5231, Revised Statutes 1909, was first enacted. State v. Bayne, 88 Mo. 610; State v. Reed, 89 Mo. 168; State v. Brannum, 95 Mo. 19; State v. Day, 100 Mo. 242; State v. Cantlin, 118 Mo. 100; State v. Kennade, 121 Mo. 405; State v. Paxton, 126 Mo. 500; State v. Hilsabeck, 132 Mo. 348; State v. Foster, 136 Mo. 653; State v. Woods, 137 Mo. 6; State v. Waters, 139 Mo. 539; State v. Cantlin, 118 Mo. 100; State v. Sacre, 141 Mo. 64; State v. Lamb, 141 Mo. 298; State v. Barton, 142 Mo. 450; State v. Meadows, 156 Mo. 110; State v. Armstrong, 167 Mo. 257; State v. Koplan, 167 Mo. 298; State v. Brown, 168 Mo. 449; State v. Riddle, 179 Mo. 287; State v. Sharp, 183 Mo. 715; State v. Eaton, 191 Mo. 151; State v. Welch, 191 Mo. 179; State v. Delcore, 199 Mo. 288; State v. King, 194 Mo. 474; State v. McCarver, 194 Mo. 717; State v. Chenault, 212 Mo. 132; State v. Gordon, 196 Mo. 185; State v. Bond, 191 Mo. 555; State v. Weatherman, 202 Mo. 6; State v. West, 202 Mo. 128; State v. King, 203 Mo. 560; State v. Barnett, 203 Mo. 640; State v. Espenschied, 212 Mo. 222; State v. Wilson, 225 Mo. 503; State v. Goldsby, 215 Mo. 48; State v. Barker, 216 Mo. 532; State v. Nelson, 225 Mo. 551; State v. Tucker, 232 Mo. 1. (2) Sec. 1987, R. S. 1909, provides that the court may instruct in civil cases. This section goes much further than Sec. 5231, R. S. 1909, does in criminal cases. The section in civil cases (1987) expressly provides that the instruction given either at the request of the parties or by the court of its own motion, shall be taken to the jury room by the jury and returned by the jury into court with their verdict, and when returned, such instructions shall be filed by the clerk and become a part of the record in the case. Yet notwithstanding this broad provision of the statute, the appellate courts of this State have uniformly held that no instruction given in a civil case shall be subject to review in an appellate court unless proper exception was made at the time it was given or refused and shown by the bill of exceptions, and, secondly, that this matter must be brought to the attention of the trial court in the motion for a new trial. Sickles v. Bullock, 86 Mo.App. 89; Berkbiegler v. Railroad, 164 Mo.App. 441; Montague C. A. Co. v. Fulton, 166 Mo.App. 11; Kolokas v. Railway, 223 Mo. 460; Bldg. Co. v. Hopkins, 204 Mo. 654; Randolph v. Alsey, 8 Mo. 656; Floersch v. Bank, 10 Mo. 515; Dozier v. Jerman, 30 Mo. 216; Thompson v. Russell, 30 Mo. 498; Boyse v. Crickard, 31 Mo. 530; Walsh v. Allen, 50 Mo. 181; Shaw v. Potter, 50 Mo. 281; Van Cleve v. Gilstrap, 50 Mo. 412; Waller v. Railroad, 83 Mo. 617. The fundamental distinction between the rule as to giving instructions in civil cases and in criminal cases is this: In civil cases the court is not required to give instructions except when requested. Sec. 1987, R. S. 1909; Coleman v. Drane, 116 Mo. 387; Brown v. Ptg. Co., 213 Mo. 611; Nolan v. Johns, 126 Mo. 159; Browning v. Railway, 124 Mo. 119; Marion v. Railway, 127 Mo.App. 129. In criminal cases the statute requires the court, whether requested or not, to instruct on all questions necessary for the information of the jury. Secs. 5231, 5244, R. S. 1909. We now examine the statutes concerning the saving of exceptions and the right to review proceedings in the trial court by the appellate court. Sec. 5245, R. S. 1909, shows that exceptions in criminal cases shall be preserved in the manner and within the time as required for preserving same in civil cases. Sec. 2028, R. S. 1909, shows when and how bills of exceptions in criminal cases are taken. The rule as to the necessity of preserving, by timely exception, the action of the court in giving or refusing instructions is not changed. See also Sec. 2081. There is nothing in the statute which would relieve a defendant in a criminal case from the necessity of excepting to the action of the court in failing to give proper instructions in a criminal case. The only statutory rule on this question is found in section 5245 which refers for the authoritative rule in such cases to the practice in civil cases. Since the organization of this court, it has been an unbending rule in civil practice that in order to confer the power on the appellate court to review instructions given in a civil case, there must, first, have been objections made and exceptions saved at the time the court gave or refused to give the instructions, and, secondly, these matters must have been called to the attention of the trial court in the motion for a new trial; and, thirdly, we may add, the bill of exceptions must show that the action of the court in overruling the motion for a new trial was excepted to at the time. In the absence...
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