State v. Johnson. and he got me in the buggy and when he did get me in, I had to get on my knees; I couldn't even stand up or sit up. I was sick and I wasn't able to drive no horse, and I suppose he took me there [to town]. . And I want to tell you one thing, that Pat Kenner and me never had a cross word in our life." On cross-examination defendant stated he had never struck the deceased in his life; also that he never saw the gun with which the deceased shot him, as Mildred Galloway had her hand over it. That after shooting him, the deceased turned and ran to the barbed wire fence, where he got caught in the wire; and that "they beat him while they had him in that fence." Defendant denied that he saw John Bailey in the Umpton field that night, as Bailey had testified, and that the last thing he remembered was "when the boys were helping him in the buggy when he was lying down on his side and knees." Defendant also testified that he got shot about three o'clock, as near as he "could guess it." The gun-shot wound defendant received was on the right side of the abdomen, near the lower region of the sixth rib. While such an injury would cause pain, it would have no material effect upon physical exertion, was the opinion of Dr. Bitter, the county physician; Dr. Arnold, the coroner, and Dr. Mortgner stated that a man sustaining such a wound would be capable of running and jumping within an hour after receiving the same. It was the opinion of Dr. Reed, however, that such an injury would interfere with physical exertion. Dr. Reed also testified that when he examined defendant shortly after the difficulty, the latter was drunk. There was evidence offered on the part of defendant tending to show previous good character. In rebuttal, Virgil Bailey denied that he had stamped the deceased, as testified to by defendant, and State v. Johnson. Sallie Abbington and Mildred Galloway denied defendant's version of the manner in which the difficulty between him and the deceased had begun. The court instructed the jury on murder in the first degree, the second degree, and manslaughter in the fourth degree; the presumption of innocence; defining a reasonable doubt; prescribing the punishment if found guilty of either of the degrees of homicide defined; the weight to be given defendant's testimony; that the jury are the judges of the credibility of witnesses and the weight of their testimony; the weight to be given evidence as to defendant's good character; the influence of, motive upon the jury's finding; alibi; and defining the technical words used in the indictment for murder in the first degree. The defendant's motion for a new trial is in the usual general form, without any special allegations of error. Counsel for defendant complains here only of the giving of instructions numbered 13, 14, and 15; the first and second were in regard to murder in the second degree and manslaughter in the fourth degree respectively; and defendant's complaint is that in neither was the jury required to find an intention to kill on the part of the deceased to render the defendant guilty of the crime charged; the giving of the third, numbered 15, is assigned as error because it did not define "heat of passion." Instructions: The errors complained of in regard to the instructions are those of omission, and not of an express character, as when an instruction in terms incorrectly declares the law. Errors of omission may be cured by the giving of Omissions. other instructions which supply the omitted parts, and thus complete the declarations of law necessary to enable the jury to correctly find upon the matter at issue. This is what is meant when it is said that instructions are sufficient when, "taken as a whole, they correctly declare the law." This State v. Johnson. cannot be said of instructions if one of them is expressly erroneous, because its tendency may be to mislead the jury, although all of the others may properly declare the law applicable to the case. The burden of defendant's complaint is omission from the instructions of alleged necessary words. This error, if it exists, may be cured by the use of other words. conveying the same meaning as those omitted, or, by the court giving other instructions which by their terms cure the defect. An examination of all of the instructions given discloses that the one numbered "eleven" clearly and Wilfully: correctly defines all the technical words necessary to be used in instructions in a trial for murder; among these is the word "wilfully," which is defined as "intentionally, not accidentally," that "if the defendant intended to kill, such killing is wilfull," and, "in the absence of qualifying facts and circumstances, the law presumes that a person intends the ordinary and probable result of his acts." It will be found that instructions numbered "thirteen" and "fourteen" each require the jury to find that the defendant wilfully committed the act which resulted in the death of the deceased. Things equal to the same thing are equal to each other, and the use of the word wilfully, therefore, supplies the omission of the words "with intent to kill," complained of by defendant. Precedents are not lacking in support of this conclusion. In State v. Hyland, 144 Mo. 1. c. 311, an instruction almost identical in form with that defining murder in the second degree here, was approved by this court. In that case, as in the case at bar, the word "wilfully" and the other technical words necessary to be employed in cases of homicide had been defined in other instructions, but the words "with intent to kill" are omitted. State v. Johnson. In State v. Smith, 164 Mo. 1. c. 585, the court approved instructions almost identical with those complained of here, and in so doing said: "While the instruction under comment did not, in so many words, tell the jury that such an intent was necessary, it did tell them that if defendant 'wilfully,' etc., struck and killed Henry Watson with billiard cues they would find him guilty, while the third instruction defined wilfully as being intentionally and not accidentally. If then the word wilfully means intentionally, they mean one and the same thing, and the use of the word wilfully was all that was necessary." The following cases announce the same dostrine: State v. Kinder, 184 Mo. 276; State v. John, 172 Mo. 1. c. 226; State v. Barrington, 198 Mo. 1. c. 105. Heat of Instruction numbered 15 given by the court is complained of because it did not define the term "heat of passion." This instruction contains, among others, the following words: "A violent passion suddenly aroused by reason of said Henry Kenner having shot at or wounded the defendant with a pistol," as well as the words subsequently used in the same instruction: "then such heat of passion which may have been aroused in defendant by reason of said Kenner shooting at or wounding the defendant with a pistol." In State v. Rose, 142 Mo. l. c. 429, the court in discussing an instruction similar in terms to that under consideration said: "A final contention is that the court failed to define 'heat of passion,' as used in the instructions, but this seems to be a misapprehension of the only instruction in which those words are used, to-wit, the fifth, wherein it is said, 'while the defendant was in violent passion, suddenly aroused by reason of Wells having shoved him, or struck him with his fist or hand,' or that defendant shot and killed Wells while in a violent passion, suddenly aroused by a shove or a blow from Wells.' No further defini State v. Henschel. tion was necessary." If this ruling was not conclusive of this question, the giving by the court of instruction numbered 12 in the case at bar cured any defect in the instruction complained of. Instruction numbered 12 concludes as follows: "And when this passion is produced by an assault or personal violence, and such passion thus aroused is so violent as to render one not unconscious of the act, but deaf to the voice of reason, and under the control of such passion he suddenly acts, it is not an act of deliberation or of malice." This in our opinion is sufficient to enable the jury to intelligently determine what is meant by "heat of passion." A careful consideration of this entire record justifies the conclusion that the defendant was given a fair and impartial trial. The killing was brutal, and the defendant has had the benefit of the services of able and industrious counsel in the trial court and on appeal. Finding no reversible error, the judgment of the trial court is affirmed, and it is so ordered. Brown, P. J., and Faris, J., concur. THE STATE v. OTTO HENSCHEL, Appellant. Division Two, May 20, 1913. INFORMATION: Burglary and Larceny: Incorporation of Owner Must be Alleged. An information charging burglary and larceny from a company must, to be valid, state whether the company is a corporation or a partnership. Appeal from Montgomery Circuit Court.-Hon. Bernard H. Dyer, Special Judge. REVERSED AND REMANDED. |