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his good character would not justify or excuse him, was not a sufficient instruction as to reasonable doubt, since it blended the subjects of good character and reasonable doubt so as to minimize the effect of any doubt which might have existed in the minds of the jury regarding defendant's guilt.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.*] 5. CRIMINAL LAW (§ 1063*)-APPEAL-RESERVATION OF GROUNDS OF REVIEW-MOTION

FOR NEW TRIAL.
Under Rev. St. 1909, § 5231, providing

that, whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case necessary for their information in giving their verdict, and that the failure to so instruct in cases of felony shall be good cause for setting aside the verdict and granting a new trial, and section 5285, providing that the motion for a new trial must set forth the grounds or causes therefor, the failure to give an instruction as to reasonable doubt cannot be reviewed, unless brought to the trial court's attention by a motion for a new trial, since the Supreme Court does not set aside verdicts and grant new trials, except as an incident to reversing judgments; and section 5231 there fore refers exclusively to the procedure in trial

courts.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2673, 2676-2684; Dec. Dig. § 1063.*]

6. CRIMINAL LAW (§ 1056*)-APPEAL-RESERVATION OF GROUNDS OF REVIEW-EXCEP

TIONS.

Under Rev. St. 1909, § 5231, where the failure to charge in a felony case as to reasonable doubt is made the ground of a motion for a new trial, it is reviewable on appeal, though no exception to the instructions is taken, notwithstanding section 2081, providing that no exception shall be taken in an appeal or writ of error to any proceeding in the circuit court, except such as shall have been expressly decided by that court, since, the statute having relieved defendant of the duty of requesting instructions, he is not bound to suggest instruc

tions by excepting to their omission.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.*]

Faris, J., dissenting in part.

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On the part of defendant the evidence eral threats against the defendant. tended to prove that deceased had made sevThese threats did not extend to the taking of life, but only a desire to whip or stamp defendant. According to the testimony of defendant and his wife, deceased frequently spoke to them of his ability to use the weapons with which nature had provided him; that on one occasion he knocked a man down and stamped the man thus assaulted so severely that one of his ears had to be sewed on, and that he was confined to his bed for several weeks.

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There were no eyewitnesses to the killing except defendant and his wife. They testified that deceased came to defendant's home an account growing out of a crop which deceased had cultivated on defendant's land, a part of which crop had been sold. Defendant being absent, deceased sat down on a small box near defendant's house and waited for him. When defendant returned, the parties exchanged accounts, and, according to defendant's evidence, when they began discussing the settlement, deceased became very angry, jumped up from the box, and struck at defendant, saying as he did so, "I am going to stomp you into the ground." Defendant claimed that he dodged the blow so struck by deceased, and, believing that he was in imminent danger of great personal injury, shot deceased in the breast five times, inflicting wounds from which he died in a few minutes.

The evidence on the part of defendant and his wife was somewhat weakened by the finding of blood near the box where deceased had been sitting, and the further fact that some of the bullets fired into the breast of deceased ranged downward as though he was sitting and the defendant standing when such shots were fired.

There was enough evidence to support the verdict of conviction; while, if the jury had believed the defendant and his wife, they would have been justified in returning a verdict of not guilty on the theory that defendant was in imminent peril, or had good reason to believe that he was in imminent danger of great personal injury, when he shot

deceased.

For reversal defendant relies upon the failure of the court to give instructions defining the law of presumption of innocence and reasonable doubt.

H. D. Green, of West Plains, S. M. Meeks,

of Thayer, and Geo. M. Miley, of Harrisburg, Ill., for appellant. John T. Barker, Atty. Gen., and Wm. M. Fitch, Asst. Atty. Gen.,

for the State.

I. Reasonable Doubt.

BROWN, J. (after stating the facts as above). The defendant did not, in writing

or orally, request any instructions, but in | tion; otherwise it will not constitute reversihis motion for new trial complains of the ble error for the court to omit instructions alleged failure of the trial court to instruct on that point, because the issue thus raised, on the legal presumption of defendant's in- while it may be helpful to defendant, is one nocence and the law of reasonable doubt. of a collateral nature, and not indispensable in arriving at a correct verdict. State v. Starr, 244 Mo. 161, 148 S. W. 862.

In discussing the instructions which should be given by the court on its own motion "whether requested or not," Kennish, J., in the late case of State v. Weinberg, 245 Mo. loc. cit. 575, 150 S. W. 1072, said:

There were in fact no such instructions given by the court. The defendant introduced evidence tending to prove his previous good character, and on this evidence the court gave the following instruction:

"If defendant has proven to your reasonable satisfaction that prior to the alleged difficulty he sustained a good reputation as a law-abiding citizen, then you should consider that fact in passing on the question of his guilt or innocence, as the law presumes that one whose character is good is less likely to commit a crime than one whose character is not good; but if you believe beyond a reasonable doubt, from all the evidence in this case, including that of good character, that defendant is guilty on this charge, his good character will not justify

or excuse him."

The court gave an instruction on the presumption arising from the intentional use by defendant of a deadly weapon upon a vital part of deceased. In fact, its instructions are not objectionable, unless a specific instruction on reasonable doubt was necessary for the information of the jury in giving their verdict, as required by section 5231,

R. S. 1909.

[1, 2] The doctrines of presumption of innocence and reasonable doubt are so closely related that it has been held that it is not reversible error to omit to instruct on the law of presumption of innocence, if the court has fully instructed on the subject of reasonable doubt. State v. Maupin, 196 Mo. 164, loc. cit. 175, 176, 93 S. W. 379; and State v. Dudley, 245 Mo. 177, loc. cit. 184, 149 S. W. 449. The doctrine that a defendant is entitled to an instruction directing the jury that, unless his guilt is proven beyond a reasonable doubt, the jury shall give him the benefit of such doubt and acquit him is so interwoven in our jurisprudence that it has become an essential element of law in every criminal case. The defendant is just as much entitled to this instruction as he is to a trial by jury, for, if the court may direct a jury to convict a defendant, then the constitutional right to a trial by jury would amount to little or nothing. In discussing this point in the case of State v. Gonce, 79 Mo. 600, Ewing, J., said:

"That part of the instruction as to a reasonable doubt is usually asked and given on the part of the state, * * even though it may appear to the court there can be no grounds for a reasonable doubt; yet the accused must have the opinion of the triers of the fact upon that question. This instruction should have been given for the defendant, and the court committed error in refusing it."

On this point also see State v. Fannon, 158 Mo. 149, 59 S. W. 75, and State v. Gullette, 121 Mo. 447, loc. cit. 458, 26 S. W. 354.

[3] When a defendant is entitled to an instruction limiting or modifying the effect of evidence which has been legally introduced,

"Instructions presenting the facts constitutive of the offense charged, or of any grade thereof shown by the testimony, the punishment authorized to be inflicted in case of a convic

tion, instructions upon the presumption of innocence and reasonable doubt, and good character when put in issue by the testimony, and also instructions presenting the law upon each defense interposed by the accused, are necessary for the information of the jury."

Kennish, as above quoted, and, unless the We adhere to the views expressed by Judge doctrine of reasonable doubt was sufficiently expressed in the instruction touching good character as hereinbefore quoted, the cause must be reversed.

[4] The Attorney General insists that, as the words "reasonable doubt" were used in the instruction before quoted, it was not necessary to give a separate instruction on that point-that the law really contemplates that only one instruction shall be given in a criminal case which shall cover all the rules of law necessary for the guidance of a jury. Without deciding whether this theory is correct or not, the law (section 5231, R. S. 1909) speaks of instructions, and it is self-evident that the directions of the court can be more readily understood where the different subjects discussed are divided into separate instructions, or separate paragraphs of the same instruction.

The instruction now in judgment and before quoted blended the subjects of good character and reasonable doubt in such a manner as to minimize the effect of any doubt which might have existed in the minds of the jury regarding defendant's guilt. The court should have unequivocally told the jury that the burden of proving defendant guilty beyond a reasonable doubt rested upon the state, and that, if they entertained a reasonable doubt of defendant's guilt, they should give him the benefit of such doubt and acquit him. For the error of the court in omitting to give a correct instruction on the doctrine of reasonable doubt, its judgment must be reversed.

II. Motion for New Trial.

[5] The learned Attorney General insists that, even if the instructions as given do not properly declare the law on the subject of reasonable doubt, the error was not properly preserved by defendant, as he did not, at the trial, specifically except to the failure of the court to instruct on that point.

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ing of the decision of this court in the case of State v. Conway, 241 Mo. 271, 145 S. W. 441. The only proposition of law announced in the Conway Case about which the writer has any misgivings is expressed in the following language:

"If satisfied from the record that there has been a failure to instruct the jury upon a question which goes to the fundamental rights of the defendant, and that by such failure injustice may have been done or a verdict returned different than if such failure had not occurred, this court, in the interest of justice, will not hesitate to grant a new trial, though the question should be presented here for the first time."

ner as in civil cases. This is the general law as prescribed by section 5245, supra, and applies to the saving of exceptions to all errors where some other rule of law is not specifically applicable.

It is axiomatic that where a statute deals only with one phase of a subject, and that subject is also governed by a general law, the provisions of the statute which deal only with one phase of the subject will prevail over the general law, in so far as there is conflict between such statutes. Lewis' Sutherland, Statutory Construction (2d Ed.) p. 532; State v. Railroad, 239 Mo. loc. cit. 281, 143 S. W. 785; Folk v. St. Louis, 250 Mo. 116, loc. cit. 136, 157 S. W. 71.

My reason for doubting the correctness of the foregoing pronouncement is that section 5231, R. S. 1909, says that a failure to give It is apparent that prior to 1901 it was such instructions as are necessary for the in- the duty of a defendant to suggest to the formation of juries in giving their verdict court the giving of such instructions as it in felony cases "shall be good cause when had not of its own motion given. It is also the defendant is found guilty for setting equally apparent that the General Assembly, aside the verdict of the jury and granting a in its zeal to force the courts to accord a full new trial." This court does not set aside and fair trial to persons accused of felonies, verdicts and grant new trials on appeal, ex- removed from the defendant the burden of cept as an incident to reversing judgments aiding the court in preparing instructions, upon which such verdicts are predicated. and permits him to remain silent on the subTherefore, in my opinion, the words from | ject of instructions, if the evidence raises no said section 5231, supra, which we have itali- collateral issue. cized, pertain and refer exclusively to the procedure in trial courts, and as the law requires motions for new trial to be specific (section 5285, R. S. 1909), it becomes the duty of a defendant convicted of a felony to call the trial court's attention to the specific points upon which it has neglected to give proper instructions.

III. Exceptions.

[6] Regarding the further contention of the learned Attorney General that the Conway Case, supra, is erroneous, in that it enables a defendant to review in this court the failure of the trial court to give necessary instructions, notwithstanding such defendant has not excepted to such failure at the time other instructions were given, and has raised the point for the first time in his motion for new trial, we will say that this very issue received a most thorough consideration when the opinion in the Conway Case was prepared. While section 2081, R. S. 1909, was not mentioned in that opinion, it was in fact considered, and also the statutes of other states similar in form to our own, as well as the constructions that have been placed upon such foreign statutes. The opinion in the Conway Case was held up for some weeks, and the whole subject was exhaustively investigated by each member of this division of the court. The opinion prepared by Judge Kennish, who, on account of his wide experience, pre-eminent ability, and judicial acumen, was rully equipped to weigh the matter from every conceivable point of view, is entitled to great weight.

The contention of the Attorney General that a defendant must at the trial, and before the cause is submitted to the jury, make or save specific exceptions to the action of the court in failing to instruct on the points which have by the court been omittted would be equivalent to placing upon the defendant the duty of informing the trial court of the point of law upon which it had failed to instruct. This the law does not contemplate.

Laws relating to crimes and criminal procedure are liberally construed in favor of the defendant, and strictly construed against the state, and I cannot bring myself to believe that the lawmakers would intentionally relieve a defendant of the duty of requesting certain instructions, and at the same time leave him under obligation to specifically except to the omission of the very instructions which he is not under obligation to request. Putting it in a little plainer language, section 5231, supra, having specifically relieved defendant of the duty to request certain necessary instructions, by the same token relieves him of the duty of suggesting the giving of such instructions. The position assumed by the Attorney General calls for a reversal of this rule of construction, and requires a defendant to speak when the instructions are given, notwithstanding the statute clearly contemplates that he may remain silent at that important moment and yet reserve his right to secure a new trial if any necessary declarations of law are omitted by the court.

The Attorney General calls our attention to section 2081 of the Civil Code, R. S. 1909, which says that:

We quite agree with the Attorney General
that errors occurring in the trial of criminal "No exceptions shall be taken in an appeal or

court, except such as shall have been expressly decided by such court."

This is a part of the general law applicable to all appeals; but it would not be seriously contended that said last-quoted section would prevent a defendant from objecting for the first time in this court to an indictment which does not charge the defendant with any crime, even though the trial court had made no ruling on the sufficiency of such indictment. State v. Levy, 119 Mo. 434, loc. cit. 437, 24 S. W. 1026; and State v. Meysenburg, 171 Mo. loc. cit. 27, 51, 71 S. W. 229. Section 5231, supra, having made it the duty of the trial court to give to the jury all necessary instructions, without suggestion or request from defendant, and having further cast upon said court in felony cases the dut to grant a new trial when such necessary instructions are omitted, said section completely supersedes the general law prescribing how errors of that kind shall be preserved and considered.

Our General Assembly may throw around the life and liberty of the citizen whatever safeguards it deems proper, even though such safeguards are inconvenient and render it more difficult for the state to enforce the criminal laws. By enacting section 5231, R. S. 1909, the Legislature has made it necessary, before the life or liberty of a citizen is taken away by judicial process, that the jury to which the case is submitted shall be correctly instructed on all essential "questions of law arising in the case." Therefore it is just as necessary to so charge the jury as it is to present a valid indictment or information against the defendant. The only difference, so far as the defendant is concerned, is that, when the indictment or information is fatally defective, he can secure a reversal of the judgment, without calling attention to the insufficiency of such indictment or information in his motion for new trial, while, if there be a failure to instruct on some essential question of law arising in the case, he must give the court an opportunity to correct such error by a motion for new trial, in which such error is specifically pointed out.

WALKER, P. J., concurs. FARIS, J., Concurs in opinion filed.

It was well understood when the opinion in the Conway Case was written that it conflicted with the views expressed in many other prior decisions of this court, particularly the cases of State v. McCarver, 194 Mo. 717, 92 S. W. 684; State v. Espenschied, 212 Mo. 215, loc. cit. 223, 110 S. W. 1072; State v. Goldby, 215 Mo. 48, loc. cit. 57, 114 S. W. 500; State v. Wilson, 225 Mo. 503, loc. cit. 518, 519, 125 S. W. 479; and State v. Tucker, 232 Mo. 1, loc. cit. 15, 133 S. W. 27. In so far as the opinion in the case at bar conflicts with the conclusions reached in the cases last cited, they are expressly overruled. For the failure of the trial court to properly instruct the jury on the question of reasonable doubt, its judgment is reversed, and

FARIS, J. I fully concur in the result reached in the opinion of my learned Brother BROWN in this case; but I cannot agree with the views expressed in paragraph 3 of his opinion so far as said paragraph and the inference contained in paragraph 2 of said opinion hold that either the amendment of 1889 or that of 1901 to section 5231, R. S 1909, has relieved the defendant from the necessity of interposing any exceptions to instructions given by the court, or to the failure of the court to instruct upon all questions of law arising in the case, or upon any one of such questions.

Prior to 1901 the clause of said section 5231 pertinent to this discussion read thus: "Fourth: The court must instruct the jury the case which are necessary for their infor in writing upon all questions of law arising in mation in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial."

In 1901 the Legislature prefixed to this clause the words "whether requested or not," so that in my view the necessity, as a condition precedent to review, no longer existed, requir ing defendant to either prepare and offer an instruction, or to specifically request the court to instruct, upon such issues in the case as were bottomed upon questions of law arising in the case which are necessary for the information of the jury in giving their verdict, or upon the questions of reasonable doubt and good character, whenever necessary.

Prior to 1901, when the amendment above mentioned was made, it was the law in this state, and in every other state where the common law prevailed, that exceptions to instructions had to be taken at the time the court gave them, or neglected or refused to give them, as the case might be, in order to preserve for review objections thereto in criminal cases, just as in civil cases. State v. De Mosse, 98 Mo. 344, 11 S. W. 731; State v. Foster, 115 Mo. 451, 22 S. W. 468. I shall not burden these views with long citations of authorities; but the cases upholding the above statement as to the absolute necessity of preserving by exceptions taken an objection to instructions refused or given, or neg lected to be given, as a condition precedent to review, will be found collated in 12 Cyc 666 and 667, and 12 Cyc. 815 and 820. Unless the addition of the four words above quoted has served to change the rule, this is still the law. In what wise is it possible for so slight a change of verbiage to have so farreaching an effect?

To go back just a little ways and pick up the thread of the argument, it may be said to be so well settled in our practice as to be fundamental that matters of exception can only

alive for appellate review by a motion for a new trial. State v. Libby, 203 Mo. 596, 102 S. W. 641. Likewise it is well settled that instructions given or refused, or the failure or neglect to give proper instructions in a criminal case, are pure matters of exception, and can be preserved for review only by exceptions, and by incorporating them into a bill of exceptions. State v. De Mosse, 98 Mo. loc. cit. 344, 11 S. W. 731; State v. Marshall, 36 Mo. 400; State v. Ray, 53 Mo. 345; State v. Pints, 64 Mo. 317; State v. Williams, 77 It will be noted, therefore, upon an exMo. 310; State v. McDonald, 85 Mo. 543; amination of the cases that, when the amendState v. West, 157 Mo. 309, 57 S. W. 1071; ment of 1901 was made, this court was uniState v. Huff, 161 Mo. 459, 61 S. W. 900, 1104. formly requiring timely exceptions touching No one will contend that what we call for instructions as a condition precedent to reconvenience the "record proper" embraces in- view. It cannot, I think, be successfully constructions given in a case, either criminal or tended that the Legislature, merely by the civil. It seems to me that it is utterly impos- addition of the words "whether requested or sible to take the view that instructions pre- not," either specifically or impliedly abrogatserve themselves in the record, without ex-ed the necessity for such exceptions. The ceptions made and saved thereto, unless we Legislature had an opportunity of so saying say that in a criminal case instructions are a in express words when they amended this part of the record proper. It is fundamental statute in 1901. Since they failed to say it and manifest that they are not. Without a either expressly or by far-fetched implicaproper bill of exceptions, kept alive by a tion, we ought not to say it for them. A caresufficient motion for a new trial, neither this ful reading of the clause under discussion court nor any other appellate court, where will show that while the failure to instruct the common law prevails, would ever for a upon all questions of law arising in the case moment consider error arising upon an in- and necessary for the information of the struction, unless a plain statute so command- jury, and upon the subjects of good character ed. This court, long prior to the amendment and reasonable doubt, whenever necessary, of 1901 and the addition of the provision that is a good cause for setting aside the verdict a request for instructions on the matters of the jury and for granting a new trial, it is therein specified should no longer be neces- not said in that clause that it is good cause sary, had held that exceptions to instructions or any cause for our reversing the case and must be preserved in order to make objec- remanding it. This view is suggested in the tions touching them reviewable upon appeal, learned opinion herein by Judge BROWN. as an absolute condition precedent, without This court, in such a case as this, is but a which no review here could be obtained. court of errors, and, as Judge BROWN well This court, from 1901 until the case of State says, we have neither the power of setting V. Conway, 241 Mo. 271, 145 S. W. 441, had aside verdicts nor of granting new trials. uniformly so held. It had also held likewise We can only order the trial court to do these from the very beginning up to the date of the things. This view still leaves us in a case amendment of 1901. No well-founded doubt like this a court of errors, and we have formuthrough all the years, until the Conway Case lated by our decisions, or the Legislature has was decided, ever troubled this court upon formulated for us in statutes enacted by it, this question, and we uniformly refused to certain rules by which the errors urged before take heed of objections in any wise affecting us are preserved for our review. I cannot instructions when such objections were urged read in the clause of section 5231 under dishere, unless they were preserved in a bill of cussion any intent whatever on the part of exceptions, with specific objections and ex- the Legislature to change in any wise any ceptions urged thereto, which bill of excep- of these general rules by which objections to tions and specific objections and exceptions instructions are preserved for review. The to the instructions themselves were kept alive amendment of 1901 merely changed the law by a sufficient and timely motion for a new so as to render unnecessary any request for trial. State v. Grimes, 101 Mo. 188, 13 S. W. an instruction upon any and “all questions of 956; State v. Patrick, 107 Mo. 147, 17 S. W. law arising in the case, which are neces666; State v. Inks, 135 Mo. 678, 37 S. W. 942; sary for their [the jury's] information in givState v. Nelson, .225 Mo. 551, 125 S. W. 505; ing their verdict," including reasonable doubt State v. Kretschmar, 232 Mo. 29, 133 S. W. and, when necessary, good character. As to 16; State v. Tucker, 232 Mo. 1, 133 S. W. 27; these matters, the trial court had put upon State v. Urspruch, 191 Mo. 43, 90 S. W. 451; him the duty of instructing sua sponte corState v. Sykes, 154 S. W. 1134; State v. Fin- rectly upon the law. If he failed to do so, ley, 193 Mo. 202, 91 S. W, 942; State v. Har- or if he erred in so doing, it was his duty to ris, 199 Mo. 716, 98 S. W. 457; State v. Jones, set aside the verdict and grant defendant a 191 Mo. 653, 90 S. W. 465; State v. Morgan, new trial. If he failed to so instruct, and

and cases cited, supra; State v. Gordon, 196 Mo. 185, 95 S. W. 420. Likewise we held, erroneously, I think, that no valid objection to the failure of the court to instruct "upon all of the law in the case" would avail, unless defendant specifically embraced in his objection and exception the precise point in which the instructions given by the court were lacking. State v. Barnett, 203 Mo. 658, 102 S. W. 506; State v. Weatherman, 202 Mo. 6, 100 S. W. 482.

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