Opinion
No. 42545.
November 12, 1951.
Defendant's conviction of robbery with a deadly weapon is reversed and remanded. There was a submissible case. An instruction disparaged the defense of insanity and was otherwise erroneous. Other claimed errors were not properly preserved for review.
1. CRIMINAL LAW: Robbery: Robbery With Deadly Weapon: Submissible Case. The state's evidence, including positive identification of defendant, made a submissible case of robbery with a deadly weapon.
2. CRIMINAL LAW: Instruction Disparaging Insanity Defense Erroneous. The statement in an instruction that insanity is imposed "by the defendant's counsel as an excuse" was reversible error since it tended to disparage such defense.
3. CRIMINAL LAW: Insanity Instruction: Undue Burden of Proof. The state's instruction on the defense of insanity was reversible error because it placed an undue burden upon defendant and prejudicially emphasizes that insanity must be established to the jury's satisfaction. And this point was properly preserved in the motion for new trial.
4. CRIMINAL LAW: Erroneous Alibi Instruction: Not Raised in Motion for New Trial. The issue that the alibi instruction was erroneous was not raised in the motion for new trial and so is not preserved for review.
5. CRIMINAL LAW: Evidence: Exhibits Not Included in Bill of Exceptions. The admissibility of exhibits not included in the bill of exceptions is not subject to review.
6. CRIMINAL LAW: Evidence: Improper Cross-Examination: Objections Not Made. Defendant failed to object to cross-examination of his mother which he claims to be erroneous.
Appeal from Circuit Court of City of St. Louis: Hon. James E. McLaughlin, Judge.
REVERSED AND REMANDED.
Cecil Block for appellant; Louis E. Zuckerman of counsel.
(1) The court erred in giving and reading to the jury Instruction 4, wherein it told the jury that: "In this case insanity is interposed by defendant's counsel as an excuse for the charge set forth in the amended information. This defense, when established, is one the law recognizes, and should insanity be proved by the evidence in this case, to the reasonable satisfaction of the jury, it would be the duty of the jury, in that event, to acquit the defendant altogether." The giving of this instruction was prejudicial error, because: It was misleading and disparaged the defense of insanity, in that it told the jury that insanity was interposed by defendant's counsel as an excuse for the charge in the first amended information. State v. McCann, 47 S.W.2d 95, 329 Mo. 748; State v. Liolios, 285 Mo. 1, 225 S.W. 941; State v. Smith, 212 S.W.2d 787; State v. Crowell, 149 Mo. 291, 50 S.W. 893, 73 Am. St. Rep. 402; 16 C.J. 971, sec. 2369 (3); Aszman v. State, 123 Ind. 347, 24 N.E. 123, 8 L.R.A. 33; 16 C.J. 973, sec. 2371 (5); People v. Methever, 132 Cal. 326, 64 P. 481; State v. Crowe, 39 Mont. 174, 102 P. 579, 18 Ann. Cas. 643. (2) It disparaged defendant's defense of insanity. State v. Smith, 212 S.W.2d 787; State v. Crowell, 149 Mo. 391, 50 S.W. 893, 73 Am. St. Rep. 402; 16 C.J. p. 971, sec. 2369(3), p. 973, sec. 2371 (5). (3) It constituted an unwarranted comment without basis in the evidence. State v. Liolios, 285 Mo. 1, 225 S.W. 941. (4) It caused the jury to believe that the court believed that the defense of insanity was not made in good faith, but was created by defendant's lawyer without regard for the true condition of defendant's mind. State v. McCann, 47 S.W.2d 95, 329 Mo. 748; State v. Liolios, 285 Mo. 1, 225 S.W. 941; State v. Holloway, 156 Mo. 222, 56 S.W. 734; State v. Paulsgrove, 203 Mo. 193, 101 S.W. 27; State v. Duestrow, 137 Mo. 44, 38 S.W. 554, 39 S.W. 266; State v. Smith, 212 S.W.2d 787; State v. Crowell, 149 Mo. 391, 50 S.W. 893, 73 Am. St. Rep. 402; 16 C.J. 971, sec. 2369(3); Aszman v. State, 123 Ind. 347, 24 N.E. 123, 8 L.R.A. 33; 16 C.J. 973, sec. 2371 (5); People v. Methever, 132 Cal. 326, 64 P. 481; State v. Crowe, 39 Mont. 174, 102 P. 579, 18 Ann. Cas. 643. (5) It erroneously and prejudicially required the defendant to establish the defense and placed the burden of proving it upon the defendant at peril of conviction, rather than raising a reasonable doubt as to defendant's guilt. State v. Smith, 212 S.W.2d 787; State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701. (6) The court erred in giving and reading to the jury Instruction 4 attempting to cover defendant's defense of insanity. This instruction is prejudicial because it tends to place an undue burden upon the defendant, and prejudicially emphasizes that insanity must be established by the evidence to the jury's reasonable satisfaction. This instruction requires too great a degree of proof from the defendant, and in that respect does not correctly state the law. State v. Barton, 236 S.W.2d 603; Sec. 546.070, R.S. 1949; State v. Brinkley, 193 S.W.2d 49; State v. Aitkens, 179 S.W.2d 84; State v. Crowley, 139 S.W.2d 473, 345 Mo. 1177. (7) The court erred in giving and reading to the jury Instruction 3 on alibi, because it is prejudicially erroneous, in that it shifts and places the burden of proof on the defendant. State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701; State v. Davis, 116 S.W.2d 110, 342 Mo. 594; State v. Malone, 327 Mo. 1217, 39 S.W.2d 786; State v. Taylor, 118 Mo. 153, 24 S.W. 449; State v. Jones, 174 S.W.2d 797; State v. Miller, 208 S.W.2d 194; Section 546.070, R.S. 1949; State v. Brinkley, 193 S.W.2d 49; State v. Aitkens, 179 S.W.2d 84; State v. Crowley, 139 S.W.2d 473, 345 Mo. 1177. (8) The verdict and judgment are against the overwhelming evidence in the case; that is to say, the verdict and judgment are not sustained by the material, substantial evidence in the case. The state failed to prove the corpus delicti. State v. Gregory, 96 S.W.2d 47. (9) The court committed error in admitting and receiving in evidence, over the timely objection and exception of the defendant, the state's evidence relating to the fact that the defendant was charged with having committed a crime in 1938, and that upon the trial defendant was found not guilty by reason of insanity and ordered committed to the Fulton, Mo. Hospital for the insane; State v. Green, 236 S.W.2d 298.
J.E. Taylor, Attorney General, and A. Bertram Elam, Assistant Attorney General, for respondent.
(1) Assignments of error in motion for new trial not carried forward in appellant's brief are waived. State v. Kenyon, 343 Mo. 1168, 120 S.W.2d 245. (2) The court did not err in giving Instruction 4. State v. Duestrow, 137 Mo. 44; State v. Holloway, 156 Mo. 122; State v. Barbata, 80 S.W.2d 865; State v. Liolios, 285 Mo. 1, 225 S.W. 941; State v. Hardy, 225 S.W.2d 693; State v. Murphy, 90 S.W.2d 103. (3) The assignment of error raised for first time in appellant's brief is not properly preserved for appellate review. State v. Breeden. 180 S.W.2d 684; State v. Robinson, 177 S.W.2d 499; State v. Powers, 350 Mo. 942, 169 S.W.2d 377; State v. Wood, 199 S.W.2d 396, 355 Mo. 1008; Sec. 547.030. R.S. 1949; State v. Barton, 236 S.W.2d 596. (4) Error raised for the first time in brief cannot be considered. State v. Breeden, 180 S.W.2d 684; State v. Robinson, 177 S.W.2d 499. (5) The verdict was not against the weight of the evidence. State v. Finley, 278 Mo. 474; State v. Hart, 56 S.W.2d 592, 331 Mo. 650. (6) The court did not err in admitting state's rebuttal testimony or cross-examination of Mrs. Anna Kaerchur. State v. Farrar, 285 S.W. 1000; State v. Satterly, 131 Mo. 464, 33 S.W. 41; State v. Gunther, 169 S.W.2d 404; State v. Koch, 322 Mo. 106, 16 S.W.2d 205; City of St. Louis v. Fitch, 183 S.W.2d 828, 187 S.W.2d 63.
In the circuit court of the city of St. Louis the appellant was charged with five prior convictions of felonies and robbery in the first degree by means of a deadly and dangerous weapon. Upon trial he was convicted as charged and sentenced to life imprisonment in the state penitentiary.
[130] On the afternoon of January 31, 1949, a robbery occurred in the home of Warren Glenn, located at 5015 South Kingshighway in St. Louis, Missouri. Just before the robbery a man carrying a bag containing bread and some groceries was seen coming up the front steps of the house where the robbery occurred. He gained entrance by ringing the door bell and was admitted by one of the occupants, Alice Hunter. He followed her back to a room where there were members of the family and some guests, in all, eight or nine persons. As he followed Alice Hunter, she yelled, "What's the matter with this man, is he crazy?" With a gun in his right hand, he compelled all those present to go into the kitchen and sit there with their hands over their eyes. He went into the bedroom and while there took from the purse of Jerry Sneed, a guest, $250.00.
At the trial he was positively identified by Warren Glenn, Myrtle Berberich and Jerry Sneed as the person who committed the robbery. Other witnesses who were present testified they thought the appellant was the man who committed the robbery, while the remainder of the persons who were present during the robbery were unable to identify him.
There was evidence that appellant had driven his family to Cedar Hill that afternoon. There was substantial evidence that he was insane, in fact, he had been confined for about a year to the State Hospital for the Insane at Fulton, Missouri.
We cannot say that the state's evidence is inherently incredible, self-destructive or opposed to known physical facts; therefore, we must hold that there is substantial evidence to support the jury verdict of guilty of robbery in the first degree with a dangerous and deadly weapon. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47.
Appellant contends that the court erred in giving instruction No. 4, which was an insanity instruction. The first part of this instruction reads: "In this case insanity is interposed by the defendant's counsel as an excuse for the charge set forth in the amended information: * * *." Appellant contends that the above quoted part of the instruction is misleading and disparaged the defense of insanity.
The state relies on the following cases to show that this part of the instruction is not erroneous: State v. Duestrow, 137 Mo. 44; State v. Holloway, 156 Mo. 222, 56 S.W. 734; State v. Paulsgrove, 203 Mo. 193, 101 S.W. 27; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865; State v. Murphy, 338 Mo. 291, 90 S.W.2d 103; and State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693. The opinions in the first three cases relied upon by the state show that the instructions on insanity contain almost the identical language complained of by the appellant, but evidently no such complaint as is made here was raised because none of the three cases discusses such a question. The opinions in the last three cases relied upon by the state do not show whether the instructions contained the language complained of by the appellant in this case. At any rate, none of the above cases discusses the question raised here.
The rule is now settled that an instruction which tends to disparage a legal defense is erroneous. State v. Smith, 358 Mo. 1, 212 S.W.2d 787. In the case of State v. Crowell, 149 Mo. 391, l.c. 396, 50 S.W. 893, 73 Am. St. Rep. 402, the instruction read, "The court instructs the jury that though an alibi may be a well worn defense, yet it is a legal one, to the benefit of which the defendant is entitled." In ruling the case, we said: "There was error in giving this instruction as the court is not permitted to disparage the defense of an alibi or to refer to it in a slighting or sneering manner: evidence in regard to an alibi is to be tested and treated just like evidence offered in support of any other defense, insanity, self-defense, etc."
We think the words, "by the defendant's counsel as an excuse," used in this instruction tend to disparage appellant's plea of insanity. The use of the words, "as an excuse," is unfortunate. Of course, strictly speaking, they mean "as a defense," and those words should have been used. In the case of State v. Liolios, 285 Mo. 1, 225 S.W. 941, l.c. 948, it was ruled that the [131] words, "by appellant's counsel," "might readily be understood by the jury in a sense highly prejudicial to the appellant" and held to be "unfortunate" both in that case and in the case of State v. McCann, 329 Mo. 748. 47 S.W.2d 95. In both of those cases, temporary insanity at the time of the commission of the crime was interposed as a defense. Both of those cases were reversed on other grounds but the opinions stated that on another trial the expression. "by defendant's counsel," might well be omitted.
In ruling the Liolios case, we said (225 S.W. l.c. 948):
"Whatever might be said about the propriety of such a statement in an instruction in a case where present insanity at the time of the trial is presented as a defense, as in State v. Duestrow, 137 Mo. 44, loc. cit. 69, 38 S.W. 554. 39 S.W. 266, where such an instruction was given, we think it an unnecessary and unfortunate expression in a case, such as the present, where temporary insanity at the time of the commission of the crime charged is interposed as a defense."
We have already stated that the Duestrow case, supra, did not discuss this question. In fact, in regard to the instructions in that case, all the court said was as follows (137 Mo. l.c. 88):
"The instructions, fifteen in number, fully covered every phase of the case and left nothing to be desired. They embraced all the issues presented by the allegations of the indictment and the testimony. They are approved by many decisions of this court. One of the instructions in regard to insanity, as pointed out in the brief of counsel for the state, has received our frequent approval; the clause complained of in the instruction is the following: `To entitle the defendant to a verdict of not guilty by reason of his insanity, the law requires him to prove it; not, however, beyond a reasonable doubt, but only to your reasonable satisfaction.' As the instructions will accompany this opinion, it is deemed unnecessary to quote them at length."
We think it not only unfortunate but error for a court to use the words, "by defendant's counsel," in an instruction on insanity, whether the insanity be present or temporary insanity. It tends to disparage a legal defense of insanity when made in good faith. If there is evidence of insanity, it is the duty of the trial court to properly instruct the jury on that issue. Section 546.070, R.S. Mo., 1949.
Instruction No. 4, among other things, told the jury that:
"The law presumes every person who has reached the years of discretion to be of sound mind, and this presumption continues until the contrary is shown. So that when, as in this case, insanity is pleaded as a defense to a criminal charge, the fact of the existence of such insanity at the time of the commission of the act complained of, must, before you can acquit on that ground, be established by the evidence to your reasonable satisfaction, and the burden of proving this fact rests with the defendant.
"To establish the insanity of the defendant, positive or direct proof of it is not required. To entitle him to an acquittal by reason of his insanity, circumstantial evidence, which reasonably satisfies your mind of its existence, is sufficient.
"The law presumes the defendant innocent, and the burden of proving him guilty rests with the State, and, before you should convict him, his guilt must be established beyond a reasonable doubt. On the other hand, to entitle the defendant to a verdict of not guilty, by reason of his insanity, the law requires him to prove it, not, however, beyond a reasonable doubt, but only to your reasonable satisfaction."
This instruction is almost identical with the instruction in the case of State v. Barton. 361 Mo. 780, 236 S.W.2d 596, decided by this court en banc on February 12, 1951. The instruction was held erroneous in that case. We hold that instruction No. 4 imposed upon the appellant a higher degree of proof than the law requires.
We disagree with the state's contention that this point was not properly preserved in its motion for a new trial. The motion for a new trial, in effect, states that the instruction is prejudicial because it tends to place an undue burden upon appellant and prejudicially emphasizes that insanity must be established by the evidence to the jury's satisfaction.
[132] The appellant contends that instruction No. 3, which was an alibi instruction, is erroneous. There was no complaint of this instruction in appellant's motion for a new trial and, therefore, this question is not before us. State v. Breeden, 180 S.W.2d 684.
The appellant contends that the trial court erred in admitting in evidence the records of the Hospital for the Insane at Fulton, Missouri, which tended to show that he had been admitted to that hospital because he was found not guilty of a criminal charge in 1938 because of his insanity and was discharged from that hospital after being incarcerated there only seven months. These hospital records were not made a part of the record for our consideration. If counsel desired this Court to pass upon the admissibility of such exhibit he must incorporate it in the bill of exceptions or he may, by agreement, file this exhibit with the clerk of this Court. State v. Farrar, 285 S.W. 1000.
Appellant also contends that the cross-examination of his mother in reference to his criminal trial in 1938 and his incarceration in the Hospital for the Insane at Fulton was prejudicial error. The record shows that appellant made only one objection during her cross-examination and the court sustained that objection. Therefore, under this record he has failed to preserve it for our review.
For the errors in giving instruction No. 4, the judgment of the trial court is reversed and remanded for a new trial. All concur.