Opinion
No. 43588.
December 14, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS.
James J. Rankin, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Winston Cook, Asst. Atty. Gen., for respondent.
The defendant Azzie Bee Cook was charged by an amended information in the circuit court of the City of St. Louis under the habitual criminal act, Section 556.280 RS 1949, V.A.M.S., with conviction of two prior felonies, punishment and discharge, and of malicious assault with intent to kill one Olive Jane Squires by shooting her with a shotgun in violation of Sec. 559.180. The jury returned a verdict of guilty of assault with intent to kill without malice aforethought under Sec. 559.190, and assessed his punishment at imprisonment in the state penitentiary for five years. He stood on a demurrer to the State's evidence and did not testify. And he has filed no brief.
His motion for new trial contains 30 assignments of error. We shall not attempt to cover them in this opinion, since we have concluded the cause must be reversed and remanded on one point adjudicated in a recent decision of this court en banc, State v. Martin, 260 S.W.2d 536.
Briefly as to the facts. The only eyewitness to the shooting who testified was the victim thereof, Olive Jane Squires, who boarded with appellant's wife, Adlean Cook. Mrs. Cook did not testify. The State's witness, Olive Jane Squires, said the appellant entered the front door of the apartment carrying a shotgun. He fired one shot at his wife, which did not strike her. Olive Jane Squires retreated into her bedroom, and the appellant fired at her and she was struck in the hip and left buttock with buckshot. She fled to a neighboring house. Soon thereafter appellant was taken into custody by the St. Louis police, and thereafter convicted as stated in the beginning.
The trial court in this case gave an instruction No. 3 as follows: "You are further instructed that if one person intentionally uses upon another a deadly weapon (that is, a weapon, which, as used, is likely to produce a death,) at a vital part of the body, and in such a manner that death is likely to result, he is presumed by such use to have intended to kill, and if he so uses such a weapon, without just cause or provocation, then, unless the facts and circumstances satisfy you to the contrary, the law will presume, and you should find, that the assault was made with malice aforethought and with the intent to kill. The law presumes that a person intends the natural and probable consequences of his acts. Whether the shotgun in question was a deadly weapon and whether such a weapon was used in such a manner and with such intent by the defendant on the occasion under consideration, are matters to be determined by you from all the facts and circumstances in the case." [Emphasis ours.]
In the Martin Case, supra [260 S.W.2d loc. cit. 538] the trial court gave a somewhat similar instruction No. 3 as follows: "The Court instructs the jury that the law presumes that every person intends the natural and probable consequences of his own voluntary acts. And if he uses upon another a deadly weapon at a vital part of the body, he is presumed to intend death or great bodily harm to the person against whom such weapon is used." This court en banc in the Martin case [260 S.W.2d loc. cit. 539(2)], tentatively conceded that as an abstract general proposition the last foregoing instruction 3 correctly stated the law, at least in the absence of evidence to the contrary. But it held that a review of our decisions shows this court has not treated the foregoing presumption as a conclusive one in the sense that it is a rule of substantive law which applies regardless of facts and which cannot be contradicted by evidence to the contrary. It said that is true at least as to instructions on the subject which deal with both intent to kill and malice, and that where such instructions have been approved the rule has been stated with a limiting phrase such as "in the absence of qualifying facts" or "in the absence of evidence to the contrary."
There were no such restrictive or limiting phrases in instruction No. 3 in the instant case. We think it was erroneous in stating the law will presume a malicious assault with intent to kill. We hold instruction No. 3 in the instant case was erroneous, and calls for a reversal and remanding of the cause. It is so ordered.
LEEDY, P. J., concurs in result in separate opinion.
TIPTON, J., concurs in result and in separate opinion of LEEDY, P. J.
In this case the jury had before it a full, eyewitness account of the facts and circumstances surrounding the alleged assault by the only other person, except defendant and his wife (neither of whom testified), present at the scene of the offense. Therefore, in my opinion, there was no room for any presumption, so that the giving of instruction No. 3 on that subject fell within the condemnation of the recent case of State v. Martin, 260 S.W.2d 536, 546, where it was decided by the court en banc "that, at least in those cases where the facts are fully developed by eyewitnesses, instructions on presumptions of intent and malice, should not be given." While I fail to find in the instruction as given those deficiencies in phraseology upon which the principal opinion is based. I do agree on the broader ground (that no such instruction should have been given at all) that the giving of the instruction constituted error for which the judgment must be reversed, and the cause remanded.