Summary
In State v. Glass, 318 Mo. 611, 300 S.W. Omission of 691. l.c. 694, the court say: "The rule in civil Entrapment. cases ought to apply: That an instruction covering the whole case, and authorizing a verdict without reference to a defense which there is evidence to support, is error, but it is cured, if another instruction be given embodying that defense."
Summary of this case from State v. DeckerOpinion
December 12, 1927.
1. ABBREVIATED TRANSCRIPT: Statute: Omitted Words. The Act of 1925 (Sec. 4102, Laws 1925, p. 199), declaring that an abbreviated transcript "which the defendant or his attorney for the State may agree upon" may be substituted for a bill of exceptions, omits certain necessary words, and must be understood as an attempt to state "which the defendant or his attorney and the attorney for the State may agree upon;" otherwise, it is meaningless.
2. ABBREVIATED TRANSCRIPT: Agreement in Writing. A statement at the end of the transcript that the bill of exceptions was settled and allowed, if signed by the judge, the attorney for defendant and the assistant circuit attorney, sufficiently satisfies the requirements of the statute that their agreement shall be in writing.
3. INFORMATION: Formal Conclusion. A formal conclusion at the close of an information, in which has previously been stated every pertinent fact necessary to a charge of murder, is wholly unnecessary; and such an information, without the formal conclusion, if presented by the prosecuting attorney upon his official oath, not only charges that the defendant did kill and murder deceased, but informs him that the charge is made by proper authority.
4. EVIDENCE: Exclusion and Admission: Abbreviated Transcript. If no evidence is embodied in the abbreviated transcript upon which the case is submitted, assigned errors that the trial court erred in the admission and exclusion of evidence cannot be considered on appeal, but it will be assumed that the trial court ruled correctly upon all matters within the issues.
5. INSTRUCTION: Self-Defense. If the instruction covering the whole case in the trial of a charge of murder in the second degree contains words which negative the element of self-defense, it is not necessary to embody that defense in the instruction; and if it requires the jury to find that the assault and homicide were accomplished "without just cause or provocation," or "on purpose and of malice aforethought," or contains words of like meaning and import, it sufficiently negatives the element of self-defense.
6. ____: ____: Embodied in Another. In criminal as well as in civil cases, an instruction covering the whole case, and authorizing a verdict without reference to a defense which there is evidence to support, is error; but the error is cured if another correct instruction is given embodying that defense.
7. ____: ____: Two Instructions: Regarded as One. An instruction covering the whole case in the trial of a defendant charged with murder, from which there is omitted the defense of self-defense, to support which there is evidence, and another instruction correctly setting forth such defense which begins at the top of the next page and separated from the first only by the heading "Instruction No. 2," should be regarded as one instruction. The two appearing in immediate proximity, the defendant is not prejudiced by the fact that the first does not negative his defense of self-defense, for the second gives him the full benefit of the negation.
8. ____: Manslaughter: Fourth Degree: Superfluous Words. From an instruction on manslaughter regular in form except that it defines manslaughter in the fourth degree, the words "manslaughter in the fourth degree "may be eliminated as surplusage, since all degrees of manslaughter have been abolished (Sec. 3236, R.S. 1919), and cannot be held to be indefinite, uncertain and to unduly restrict defendant's rights, in the absence of all evidence, if it authorized a verdict for manslaughter in case the homicide was effected in a sudden heat of passion.
9. ____: ____: Evidence Presumed: Abbreviated Transcript. Although no evidence produced at the trial is set forth in the abbreviated transcript, and giving to new Section 4102 providing for such transcripts the liberal construction the Legislature evidently intended, it will be Held, on the presumption that the trial court did its duty, that it would not have given the instruction on manslaughter it did give unless there was evidence to authorize it.
Corpus Juris-Cyc. References: Criminal Law, 16 C.J., Section 2485, p. 1043, n. 35; Section 2490, p. 1047, n. 65; Section 2493, p. 1049, n. 82; p. 1050, n. 84; Section 2495, p. 1054, n. 94; 17 C.J., Section 3440, p. 157, n. 2; Section 3464, p. 173, n. 48; Section 3560, p. 213, n. 30; Section 3570, p. 224, n. 51. Homicide, 30 C.J., Section 314, p. 118, n. 76; Section 621, p. 371, n. 34; Section 654, p. 408, n. 30; Section 655, p. 411, n. 52.
Appeal from Circuit Court of City of St. Louis. — Hon. George E. Mix, Judge.
AFFIRMED.
North T. Gentry, Attorney-General, and A.M. Meyer, Special Assistant Attorney-General, for respondent.
(1) The information was not insufficient because it contained no formal conclusion. Ex parte Keet, 287 S.W. 463. (2) No bill of exceptions is before this court for the reason that defendant, in attempting to make up a short form bill, has failed to comply with the provisions of Section 4102, R.S. 1919, as re-enacted, Laws 1925, p. 199, which requires that such short form bill shall be supported by an agreement in writing between defendant, or his attorney, and the state. Laws 1925, p. 199. Statutes governing appeals must be strictly followed. State v. Campbell, 248 S.W. 927; Cassidy v. City of St. Joseph, 247 Mo. 197. (3) The allegations in the motions for a new trial relating to testimony are not to be considered for the reason that no evidence, admitted or rejected, is preserved in the bill of exceptions. (4) The allegations in the motion for a new trial, relating to instructions, are not definite and certain as required by the statute. State v. Standifer, 289 S.W. 856. (5) The bill does not preserve any exceptions to the giving of or refusal to give any instructions; hence, the trial court would not, in any event, be convicted of error even though the points relating to instructions had been properly preserved in the motion for new trial. State v. Hedgpeth, 311 Mo. 460. (6) Defendant's motion for new trial, attempts to assign as error the alleged failure of the court to instruct on all the law of the case, the alleged failure of the court to instruct as to all of defendant's rights under the law of self-defense and the giving of what is alleged to be a vague, indefinite, uncertain and unduly restricted instruction on manslaughter, in that the instruction tends to and does comment on the testimony. (a) A duplicitous assignment, such as this, does not comply with Sec. 4079, Laws 1925, p. 199, which requires that specific grounds or causes for a new trial shall be set forth in "separate numbered paragraphs." (b) The allegation that the court did not fully instruct on all the law of the case raises nothing for review. State v. Boone, 289 S.W. 578; State v. Burrell, 298 Mo. 679. (c) The defendant was not entitled to any "rights of self-defense" or any instructions upon the same unless there was evidence to justify the giving of such instructions. State v. Laycock, 141 Mo. 280. Defendant has not brought up the evidence for consideration and, therefore, whether or not further instructions were justified or necessitated by the evidence cannot be considered. In addition, there is no showing that defendant requested any additional instructions upon the subject of self-defense or upon any subject and, hence, he is not entitled to complain upon appeal. State v. Pitts, 156 Mo. 247; State v. Rozell, 279 S.W. 711; State v. Fletcher, 190 S.W. 323. The instruction given on self-defense correctly declares the law. State v. Jones, 273 S.W. 733; State v. Aurentz, 263 S.W. 178; State v. Northington, 268 S.W. 59; State v. Rozell, 225 S.W. 931; State v. McQuitty, 237 Mo. 232. The main instruction on second degree murder, under which defendant was convicted, omits any reference to self-defense but contains the words "premeditatedly and of his malice aforethought," negativing self-defense so that it was proper to treat that defense solely in a separate instruction. State v. Wicker, 222 S.W. 1014; State v. Jones, 309 Mo. 55. (d) The instruction numbered 4, on manslaughter, was a correct statement of the law in a form many times approved by this court.
The record shows that a jury in the Circuit Court of the City of St. Louis, May 25, 1926, returned a verdict finding the defendant guilty of murder in the second degree and assessing his punishment at imprisonment in the penitentiary for thirty years. Thereafter, motion for new trial was filed and overruled, and sentence pronounced after according defendant his allocution. The record recites the summoning and swearing of the jury, that the testimony of witnesses was heard, arguments made, instructions received by the jury, the cause submitted and a verdict returned, and all other formal proceedings necessary in the conduct of a trial and the perfection of an appeal. A properly authenticated bill of exceptions appears, which contains the verdict, the motion for new trial, the instructions given, the affidavit for appeal, but no evidence.
I. The appeal was perfected by an "abbreviated or partial transcript" as provided by Section 4102, Revised Statutes 1919, as amended. [Laws 1925, p. 199.] It was amended by Abbreviated appending the following proviso: Transcript: Statute.
"Provided, however, that any abbreviated or partial transcript of the evidence and oral proceedings, in narrative form or otherwise which the defendant or his attorney for the State may agree upon in writing as sufficiently presenting to the appellate court the issues involved on such appeal, shall be deemed and taken as sufficient on such appeal, and shall by the clerk be incorporated in the transcript of the record certified and transmitted by him to the appellate court, instead of the bill of exceptions mentioned above."
Apparently this proviso was an attempt to allow the attorney for the State and the defendant or his attorney to agree upon the "partial transcript" which would present the issues involved in the appeal, but the expression in the proviso relating to the partial transcript is "which the defendant or his attorney for the State may agree upon." It is evident that some words intended to be inserted were omitted. It should read, "which the defendant or his attorney (and attorney) for the State may agree upon." The words "and attorney" in parenthesis, doubtless were inadvertently omitted. We must so understand the expression or it is meaningless.
The Attorney-General objects to the sufficiency of the transcript on the ground that no agreement in writing relating to it exists between the defendant and the attorney for the State. At the end of the transcript we find a statement that the defendant's bill of exceptions was settled, allowed, etc., and this is signed by the judge, by the attorney for the Agreement defendant, and by the assistant circuit attorney. in Writing. The fact that the attorney for the defendant and the attorney for the State each signed the abbreviated transcript sufficiently satisfied the requirements that their agreement be in writing.
In abbreviating the evidence they condensed it to the vanishing point; that is, omitted it altogether. Yet the record presents questions for our consideration.
II. In the motion for new trial it is asserted that the information is defective in that it does not Information: charge that the defendant, Steve Glass, Formal Conclusion. "killed and murdered" Vivian Glass.
The information avers in due and approved form that Steve Glass, on the 23rd day of February, 1926, with force of arms, in and upon one Vivian Glass, etc., feloniously, wilfully, deliberately, premeditatedly and with malice aforethought, did make an assault and with a certain razor inflict a mortal wound, etc., from which the said Vivian Glass died on the twenty-third day of February, 1926, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State. All this is set out with sufficient precision and completeness, but the information does not conclude with the old form required in common law indictments and later followed in informations:
"Wherefore the prosecuting attorney aforesaid, upon his oath aforesaid, informs the court that the defendant at the time and in the manner and by the means aforesaid the said Vivian Glass feloniously, wilfully, premeditatedly and of his malice aforethought did kill and murder," etc.,
It was held by this Court en Banc, all members concurring excepting GRAVES, J., absent, in Ex parte Keet, 287 S.W. 463, that the formal conclusion thus omitted was no longer necessary under our practice. The opinion, written by Judge RAGLAND, traces the origin and historical reason for that formal declaration in an indictment, and disposes of the matter thus (l.c. 465):
"Under our law there is no more reason why an indictment for murder should rehearse the ancient formula in conclusion than that it should allege the value of the weapon with which the homicide was committed. It is a mere form, without life or substance, which we have been idolatrously following. If its omission be regarded as a `defect or imperfection' it is one `which does not tend to the prejudice of the substantial rights of the defendant upon the merits,' and which therefore does not render the indictment invalid. . . . [Sec. 3908, R.S. 1919.]"
We pointed out in State v. Lee, 303 Mo. 246, that this formal, sonorous conclusion was a part of the habiliments of the charge and performed the same office for the indictment that judicial robes performed for the judges, investing them with apparent dignity, but adding nothing to the weight and soundness of their judgment.
It also furnished to the accused further assurance that he was charged upon proper authority — an assurance no longer necessary in an information, for the State's attorney who signed the information averred that he presented it upon his official oath. After thus applying Section 3908, there is little left of such common-law forms as have been found useless in charging crimes.
III. Some errors are properly assigned in the motion to the rejection and admission of evidence claimed to be incompetent. Since no evidence of any kind is embodied in the abbreviated transcript for our consideration, and we do not Evidence: know that any evidence such as that complained Admission of, was introduced or, if it was introduced that and Exclusion. it was properly objected to, we are unable to consider the alleged errors. In the absence of a showing to the contrary the trial court is presumed to have acted regularly and correctly upon all matters within the issues.
IV. A further ground in the motion for a new trial is that the instructions given by the court did not cover all the law of the case in that it did not "avail the defendant of Instructions: all his rights under the law of self-defense." Self-Defense. Instruction numbered 1, which covers the whole case and authorizes a verdict, does not mention self-defense. Since no evidence appears in the abbreviated record we cannot know what evidence was offered on that point. The court, however, gave an instruction on self-defense, and, indulging the presumption mentioned in the preceding paragraph, we may for that reason assume that evidence was offered which justified such an instruction.
It is suggested that the case of State v. Gabriel, 256 S.W. 765, may apply here. In that case it was held that an instruction on murder in the second degree which did not take account of that defense, to support which there was some evidence, was reversible error, and the error was not cured by separate instruction on self-defense. In that case there were no qualifying words in the instruction by which the jury might consider self-defense. It has been held, however, as was noted in the Gabriel case, that where an instruction covering the whole case in a charge of murder in the second degree contains words that negative the element of self-defense it is unnecessary to embody that defense in the instruction. For instance, where an instruction requires the jury to find that the assault and homicide were accomplished "without just cause or provocation" or "on purpose and of malice aforethought." [State v. Helton, 234 Mo. l.c. 565; State v. Wicker, 222 S.W. l.c. 1016-1017.] Here the court, in the instruction objected to, first defined the different words used in describing murder in the first degree, murder in the second degree, and the like, and included the definition of malice as "a condition of mind which prompted a person to intentionally take the life of another without just cause, justification, or excuse." Then the instruction concludes thus: "bearing in mind the definitions heretofore given," of the terms willfully, premeditatedly, and malice aforethought, "if you find, etc. (that the act describing it) "was done wilfully, premeditatedly and with malice aforethought, you" will find the defendant guilty of murder in the second degree. Thus, while the words "without justification or excuse" were brought into the closing paragraph of the instruction by reference to the definitions "heretofore given," it sufficiently negatives the element of self-defense.
Besides, Instruction 1 is immediately followed by Instruction 2, which fully and correctly puts before the jury the theory of self-defense. The instructions were on a printed form, evidently used in the circuit court of St. Louis, and covered several printed pages, with the blanks filled in, applying them to the case in hand. Instruction 1 covers two pages, then follows Instruction 2 on the next page. If the top of the page on which Instruction 2 appears did not have the designation, "No. 2," both would read as one instruction. What difference does it make that the two parts of the instructions are separated by the words, "Instruction No. 2"? It would be absurd to say that the defendant was prejudiced in any way by that particular separation. [State v. Douglas, 312 Mo. l.c. 403-404-5.]
Instructions must be considered as a whole, and it is for the convenience of considering them that they are separately numbered, and not that such separate numbering gives a different effect. The rule in civil cases ought to apply: that an instruction covering the whole case, and authorizing a verdict without reference to a defense which there is evidence to support, is error, but it is cured if another instruction be given embodying that defense.
V. It is further claimed in the motion that the instruction on manslaughter is indefinite, uncertain, and unduly restricted the defendant's rights, and is a comment upon the evidence. The instruction is in regular form except that it defines manslaughter in the fourth degree. Degrees of manslaughter have been abolished and manslaughter now, under Section 3236, Revised Statutes 1919, is defined to be "every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder, or excusable or justifiable homicide." The expression "manslaughter in the fourth degree" may be rejected as surplusage. The instruction goes on to inform the jury that under the circumstances described, if the defendant was aroused by the actions of Vivian Glass to a sudden passion, which made him incapable of thinking coolly, etc., and while under the influence of that passion and before time for the blood to cool he committed the homicide, then the offense was manslaughter and not murder. There can be no objection to the form of the instruction provided the evidence warranted it. It authorized a verdict for manslaughter in case the homicide was effected in a sudden heat of passion. It did not cover every kind of homicide which might be designated as manslaughter under Section 3236, but in the absence of the evidence we assume there was no evidence of any character justifying an instruction on manslaughter except such as comprehended in that instruction.
The appellant filed no brief in this court, and we have considered the case from the record before us. We might, perhaps, have refused to consider the instructions on self-defense and manslaughter on the ground that no evidence is brought here which shows error in such instructions, but on the presumption that the trial court did its duty we hold that it would not have instructed as it did upon those points unless there was evidence to authorize it. We must assume that the Legislature, by the proviso quoted above in Section 4102, intended to simplify criminal records and expedite the disposition of cases in this court, and for that reason we think a liberal construction should be given to the act. From the record, presenting the information and the verdict, we know what the issues were, and from the recitals we know that evidence was presented on the issues. If the instructions given by the court are in accord with those issues on any state of the evidence we will not find them erroneous. With that view of the matter we find no errors in the record.
The judgment accordingly is affirmed. All concur.