State v. Francis

674 S.W.2d 49, 1984 Mo. App. LEXIS 4725

• Court: Missouri Court of Appeals
• Decided: May 9, 1984
• Docket: No. 47394
• Status: Published

Opinion

DOWD, Chief Judge.

Defendant-appellant David Harlin Francis was convicted of manslaughter § 565.-005 RSMo 1978 and sentenced as a prior offender to twelve years imprisonment pursuant to § 558.016 RSMo 1978. We affirm.

The record reveals a fight broke out at defendant’s birthday party. He testified that although he did take a rifle and go outside to try and stop it, he did not intend to pull the trigger. However, when one of the guests called out "No Dave,” “No Dave,” the gun went off. The victim later died of a gunshot wound to the right side of his head.

The only issue raised on appeal concerns the trial court’s refusal to submit an instruction defining the term “recklessly” as it appeared in the excusable homicide instruction MAI-CR 2d 2.28 submitted to the jury. We find the trial court was correct in refusing the instruction.

MAI-CR 2d 2.28 Notes on Use do not permit the definition of any terms used therein, and it is well established that unless such a definition is required it must not be used. See State v. Ball, 654 S.W.2d 336, 340 (Mo.App.1983). To permit such definitions when they are not called for would defeat the purpose of the pattern instructions. See State v. Cox, 645 S.W.2d 33, 35 (Mo.App.1983).

Judgment affirmed.

REINHARD and CRIST, JJ., concur.