Summary
In State v. Talbert, 351 Mo. 791, 174 S.W.2d 144, at 145, we said: "Appellant also complains of the refusal of what he calls his converse instructions.
Summary of this case from State v. MurphyOpinion
No. 38535.
October 4, 1943.
1. CRIMINAL LAW: Voluntary Statements: Erroneous Instruction. The instruction as to voluntary statements of defendant, which were all unfavorable to defendant, had the effect of singling out a portion of the evidence and giving it undue prominence, and was prejudicial error.
2. HOMICIDE: Second Degree, Manslaughter or Misadventure Instructions Not Required. The court was not required to give second degree, manslaughter or misadventure instructions, as the evidence was such that defendant was either guilty of first degree murder or innocent altogether.
3. CRIMINAL LAW: Overlapping Converse Instructions Need Not Be Given. It was not error to refuse to give defendant's converse instructions, all of which overlapped instructions actually given.
Appeal from Circuit Court of St. Louis County. — Hon. John J. Wolfe, Judge.
REVERSED AND REMANDED.
I. Joel Wilson for appellant.
(1) It was error for the court to neglect and fail to instruct the jury on second degree murder as a part of the law of the case. Secs. 4070, 4377, R.S. 1939. (2) It was error for the court to neglect and fail to instruct the jury on manslaughter as a part of the law of the case. State v. Palmer, 88 Mo. l.c. 572. (3) It was error for the court to neglect and fail to instruct the jury on misadventure as a part of the law of the case. Sec. 4380, R.S. 1939; State v. Crowley, 139 S.W.2d l.c. 475; 13 R.C.L., sec. 166, p. 864; 4 Warren on Homicide, sec. 340, p. 306; State v. Coff, 267 Mo. 14, 183 S.W. 287; State v. Martin, 162 S.W.2d l.c. 852. (4) The court erred prejudicially in refusing and failing to give defendant's proffered Instruction C because there was evidence that defendant had not entered into any conspiracy with Leo Lyles, Arthur Lee Butler and William Clayton or any of them to commit the offense alleged in the information filed against him; that defendant had not himself shot and killed deceased, and that defendant had not intended to shoot and kill deceased, and had protested against the commission of the alleged homicide. State v. Bidstrup, 140 S.W. 904; State v. Fraley, 116 S.W.2d l.c. 20. (5) The court erred prejudicially in refusing and failing to give defendant's proffered Instruction D because there was testimony in the case that defendant had not entered into any conspiracy with or aided and abetted Leo Lyles, Arthur Lee Butler and William Clayton or any of them in the commission of the alleged offense for which he was on trial. (See Authorities under Point (4).) (6) The court erred prejudicially to defendant in refusing and failing to give defendant's proffered Instruction H upon the hypothesis of an abandonment of the alleged conspiracy mentioned in the evidence to commit the offense charged, and defendant's protest against the commission thereof, there being evidence in support of such abandonment and protest. State v. Bidstrup, 140 S.W. 904; State v. Lewis, 201 S.W. l.c. 85. (7) State's Instruction 6, erroneously comment on the evidence in that it assumed the commission of the offense charged by the statement: "After the alleged offense was committed." State v. Burns, 268 S.W. l.c. 80. (8) State's Instruction 6 relating to extrajudicial statements of defendant was an erroneous comment on the evidence and was inapplicable to the facts in the case, in that it assumed the existence of facts in support of which there was no evidence, there being no beneficial statements to himself made therein by him. State v. Jones, 268 S.W. l.c. 87; State v. Duncan, 80 S.W.2d l.c. 153. (9) State's Instruction 6, was an erroneous comment on the evidence, in that it singled out defendant's unfavorable statements alleged to have been made by him in his alleged extrajudicial statements admitted in evidence and gave undue prominence to them to the exclusion of other material evidence in the case. State v. Hersh, 296 S.W. l.c. 436. (10) State's Instruction 6, was erroneous in that it directed the jury to consider the favorable statements of the defendant contained in his alleged extrajudicial statements together with the unfavorable statements therein notwithstanding there were no favorable statements to defendant contained in such extrajudicial. State v. Duncan, 80 S.W. l.c. 154; State v. Busch, 119 S.W.2d l.c. 268; State v. Luna, 162 S.W.2d l.c. 859. (11) State's Instruction No. 6, was erroneous in that it invaded the province of the jury to pass upon the facts and to determine the credibility of the witnesses and the weight to be given their testimony. See Authorities under point (10). (12) It was error to refuse and fail to give correct converse instructions C, D and H requested by defendant in view of the following insufficient concluding statement in State's Instruction 2: "and unless you find the facts to be as stated in this instruction you will acquit the defendant, William Edward Talbert, of murder in the first degree." State v. Fraley, 116 S.W.2d l.c. 20. (13) State's Instruction 4, is an erroneous comment on the evidence as there is no substantial evidence in the case that the defendant Talbert conspired with Leo Lyles, Arthur Lee Butler and William Clayton or any of them to kill deceased, nor that he himself killed or intended to kill him. See Authorities under Points (1) and (2). (14) State's Instruction 7, is an erroneous comment on the evidence, and misleading and confusing to the jury, and an invasion of the province of the jury to determine the credibility of the witnesses and the weight to be given to all testimony, in that it is a mandatory direction as to how the jury must consider the evidence. State v. Waller, 259 S.W. l.c. 445; State v. Martin, 124 Mo. 514, 522, 28 S.W. 12; State v. Barnes, 204 S.W. 264. (15) The court erred in giving, of its own motion, Instruction 10, which in effect erroneously advised the jury that inasmuch as they had not been able to agree upon the punishment to be assessed but had agreed upon a verdict of guilty, then in that event they should return a verdict finding the defendant guilty of murder in the first degree and leave the fixing of punishment defendant was to receive to the court, in that said instruction deprived the defendant of his fundamental right to have a fair trial. State v. Foote, 7 Mo. 502; State v. Gilbreath, 130 Mo. l.c. 505, 32 S.W. 1023.
Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., for respondent.
(1) The information is sufficient in form and substance and fully apprises the defendant of the crime charged. Sec. 4376, R.S. 1939; State v. Conley, 164 S.W. 193, 255 Mo. l.c. 195; State v. Kenyon, 126 S.W.2d 245, 343 Mo. 1168. (2) The verdict is sufficient in form and substance. Secs. 4093, 4378, R.S. 1939; State v. Adams, 19 S.W.2d 671, 323 Mo. 729; State v. Hampton, 172 S.W.2d l.c. 5. (3) There is substantial evidence to support the verdict of murder in the first degree and the trial court committed no error by not instructing upon lower degrees of the crime. State v. Clymer, 159 S.W.2d 808; State v. Taylor, 148 S.W.2d 802, 347 Mo. 607; State v. Schrum, 152 S.W.2d 17, 347 Mo. 1060; State v. Ring, 141 S.W.2d 57, 346 Mo. 290; State v. Cohen, 100 S.W.2d 544. (4) The court committed no error in refusing to give converse instructions offered by defendant when said instructions failed to properly declare the law. State v. Messino, 30 S.W.2d 750, 325 Mo. 743; State v. Fraley, 116 S.W.2d 17, 342 Mo. 442; State v. Quinn, 130 S.W.2d 511, 344 Mo. 1072; State v. Tucker, 62 S.W.2d 453, 333 Mo. 171; State v. Parr, 296 Mo. 406, 246 S.W. 903. (5) The court committed no error in giving Instruction 6. Secs. 4093, 4378, R.S. 1939; State v. Adams, 19 S.W.2d 671, 323 Mo. 729. (6) The court committed no error in admitting the testimony of Arnold Willman, sheriff, when no objection was made by the defendant at the time such evidence was adduced. State v. Hepperman, 162 S.W.2d 878, 349 Mo. 681; State v. Rowe, 24 S.W.2d 1032, 324 Mo. 863. (7) The court properly gave Instruction 1 relative to the defendant acting with others with a common intent to commit a crime. State v. Pease, 133 S.W.2d 409; State v. Nasello, 30 S.W.2d 132, 325 Mo. 442; State v. Adams, 98 S.W.2d 632, 339 Mo. 926; State v. Ellis, 290 Mo. 219, 234 S.W. 845. (8) The court committed no error in giving Instruction 5. If anything, such an instruction was beneficial to the defendant and he therefore cannot be heard to complain. (9) Under the objection made by the defendant to the giving of Instruction 7, the court committed no error in giving such instruction. State v. Marlin, 259 S.W. 433; State v. Shelton, 223 Mo. 118, 122 S.W. 732; Chicago and E.R.R. Co. v. Michigan, 45 N.E. 290, 163 Ill. 305.
William Edward Talbert was found guilty of the murder, in the first degree, of Martin Twillmann. The jury were unable to agree on the punishment and the court assessed the death penalty.
We briefly state the essential facts. Appellant and three other negro boys — Leo Lyles, Arthur L. Butler, and Willie Clayton had trouble with an automobile they had stolen and, proceeding on foot, approached Marvin Twillmann, who was a cousin of deceased and was watering his (Marvin's) stock at the time, and ordered Marvin, at the point of revolvers, into his truck. Lyles drove the truck down a one-lane road with two of the boys sitting on top of Marvin. Martin Twillmann was approaching in an automobile with his mother. He pulled to the side to let the truck pass. Lyles was not sufficiently careful in operating the truck and, in attempting to pull over and pass, the truck became stalled in the ditch after it had just passed the other car. Appellant, with a revolver, had Marvin Twillmann go to the rear and around the truck. In the meantime, Martin Twillmann and his mother had been ordered out of their car. Just as Martin Twillmann was about out of his and, so far as disclosed by the State's evidence, without apparent reason he was shot by Lyles and killed. Mrs. Twillmann screamed and started to run. She was shot. There was testimony that appellant fired a shot or shots at Mrs. Twillmann. Other events need not be narrated. Marvin Twillmann managed to escape. Mrs. Twillmann's wounds were not fatal.
Appellant attacks an instruction on statements, reading:
"The court instructs the jury that if you believe and find from the evidence that the defendant voluntarily made any statement or statements, either oral or written, after the alleged offense was committed, you should consider such [145] statement or statements altogether. The defendant is entitled to the benefit of what he said for himself, if true, as the State is to the benefit of what he said against himself, if anything. You may believe or disbelieve it, as it may be shown to be true or false by all the evidence in the case."
The State cites only State v. Krauss (Mo.), 171 S.W.2d 699, 700[4], which furnishes no authority for sustaining the instruction. We have moved away from our holdings that an instruction as to the legal effect of certain kinds of evidence is proper and is not to be condemned as an unauthorized comment on the evidence, especially with respect to extra judicial statements by an accused, since State v. Hayes (Mo. 1924), 262 S.W. 1034, 1036[5]. State v. Simenson (1914), 263 Mo. 264, 267(I), 172 S.W. 601, 602[1, 2]. A more objectionable instruction was condemned in State v. Duncan (1935), 336 Mo. 600, 613, 80 S.W.2d 147, 154, but part of the language employed is applicable here, viz.: ". . . The only statements proven by the state to have been made by the appellant were unfavorable to him, and yet the instruction tells the jury they must all be considered together . . . There were no favorable statements in the case to be weighed with the unfavorable statements. Under the facts, the effect of the instruction was to single out the unfavorable statements and tell the jury they must consider them." In the instant case the statements attributable to appellant with respect to the offense for which he was on trial were not favorable to him but against his interest. In these circumstances, under the Duncan case, supra, the instruction erroneously singled out a portion of the evidence and gave it undue prominence to the prejudice of the appellant. State v. Robertson, 351 Mo. 159, 171 S.W.2d 718, also condemned an instruction similar to that of the Duncan case as an unwarranted comment on the evidence. Earlier cases are there reviewed. Consult cases like Costello v. Kansas City, 280 Mo. 576, 587(II), 219 S.W. 386, 389[3].
Appellant contends it was the duty of the court to instruct on second degree murder, manslaughter, and misadventure as part of the law of the case. The contentions have their foundation in appellant's testimony. He testified he had taken no part in the crimes the other boys had been committing; that Marvin Twillmann had offered his assistance to help the negroes reach the bus and also to move their car back on the road; that as the two cars approached on the lane he was standing on the right running-board of the truck; that after the truck stopped he heard an argument, went around and found Lyles and Martin Twillmann arguing; that Lyles had a gun; that he told Lyles not to start an argument; that he tried to get the gun away from Lyles; that he had hold of Lyles' shoulders and Marvin Twillmann grabbed him (appellant); that a scuffle and shots followed, and that he, appellant, did not shoot and never had any intention of shooting Martin Twillmann or his mother. Appellant's narrative tended to establish affirmative efforts by him from the beginning of his knowledge of the impending events to prevent the murder and under the record we think he was either guilty with Lyles or innocent altogether.
Appellant also complains of the refusal of what he calls his converse instructions. We shall not set them out. All overlap. Appellant was entitled to an instruction submitting the converse of the State's main instruction if offered in proper form. Trial courts, however, are not required to submit the converse of each and every essential factual issue to the State's case in separate instructions. State v. Fraley, 342 Mo. 442, 447, 116 S.W.2d 17, 20, states the rule thus: "We therefore rule that in all criminal cases, if a defendant offers a correct instruction as the converse of the State's main instruction, it should be given, unless fully and fairly covered by other instructions"; holding that the frequently found conclusions to the State's main instruction, i.e., ". . . and unless you so find you will acquit the defendant" affords no legal reason for refusing "a correct converse instruction offered by the defendant." State v. Quinn, 344 Mo. 1072, 1075(III), 130 S.W.2d 511, 513(III).
What is said sufficiently disposes of the review.
The judgment is reversed and the cause remanded. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.