State v. Oliver

Missouri Court of Appeals

State v. Oliver

520 S.W.2d 99, 1975 Mo. App. LEXIS 1916

CourtMissouri Court of Appeals

DecidedJanuary 13, 1975

DocketNo. 9663

StatusPublished

Cited by8 cases

This text of 520 S.W.2d 99 (State v. Oliver) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Oliver, 520 S.W.2d 99, 1975 Mo. App. LEXIS 1916 (Mo. Ct. App. 1975).

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TITUS, Judge.

An indictment filed in the Circuit Court of Franklin County charged defendant with murder in the first degree. The cause reached our bailiwick upon a change of venue to Phelps County where a jury found defendant guilty of murder in the second degree and assessed his punishment at 25 years’ imprisonment. He appealed. We reverse and remand.

There was no direct testimony of eyewitnesses connecting defendant with the shooting of his estranged wife. Although most of the evidence against defendant may be classified as circumstantial, we have not been called upon to test the sufficiency of the evidence to sustain the conviction. The three points relied on by defendant concern, in order, the averred er-roneousness of Instructions No. 6, No. 1 and No. 2. Because of our disposition of the appeal and the fact the instructions on retrial will be governed by MAI-CR, we attend only to Instruction No. 6, which reads: “Circumstantial evidence is the proof of facts or circumstances that give rise to a reasonable inference of other facts that tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”¹ No other in[101]*101struction regarding or defining circumstantial evidence was given.

Testimony was adduced by the state that defendant had made statements tantamount to admitting he had killed his wife. This constituted direct evidence of his guilt. State v. Stevens, 467 S.W.2d 10, 25[24] (Mo.1971). With direct evidence on hand, even though most of the state’s evidence was circumstantial, it was not mandatory that the trial court give a circumstantial evidence instruction. State v. Orr, 493 S.W.2d 374, 376[7] (Mo.App.1973). Nevertheless, though it was not required that the trial court give an instruction on circumstantial evidence, since it did so it should have been correct. State v. Salmon, 216 Mo. 466, 529, 115 S.W. 1106, 1125[8] (1909).

The cases are replete with pronouncements that when the state relies on circumstantial evidence, the circumstances, to warrant conviction, must not only be consistent with each other and the hypothesis of defendant’s guilt but must point so clearly and satisfactorily to his guilt as to exclude every hypothesis of innocence [State v. Morse, 503 S.W.2d 450, 451 [2] (Mo.App.1973)], and whether required or not, if an instruction on circumstantial evidence is given, the foregoing pronouncements are necessary and required elements of the charge. State v. Gray, 163 Mo.App. 696, 147 S.W. 510[1] (1912). ‘“An instruction on circumstantial evidence should, in sub stance,2 advise the jury that “the circumstances must be consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothesis, except that of guilt.” ’ State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 131.” State v. Huff, 353 Mo. 791, 798, 184 S.W.2d 447, 451 [8] (1945). Accord, State v. Burke, 462 S.W.2d 701, 703-704 (Mo.1971); MAI-CR 3.42. Instruction No. 6 utterly failed to advise the jury of the foregoing. That was prejudicial and reversible error. State v. Hoskins, 515 S.W.2d 502, 503[3] (Mo.1974).

The judgment is reversed and the cause remanded.

All concur.

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TITUS, Judge.

An indictment filed in the Circuit Court of Franklin County charged defendant with murder in the first degree. The cause reached our bailiwick upon a change of venue to Phelps County where a jury found defendant guilty of murder in the second degree and assessed his punishment at 25 years’ imprisonment. He appealed. We reverse and remand.

There was no direct testimony of eyewitnesses connecting defendant with the shooting of his estranged wife. Although most of the evidence against defendant may be classified as circumstantial, we have not been called upon to test the sufficiency of the evidence to sustain the conviction. The three points relied on by defendant concern, in order, the averred er-roneousness of Instructions No. 6, No. 1 and No. 2. Because of our disposition of the appeal and the fact the instructions on retrial will be governed by MAI-CR, we attend only to Instruction No. 6, which reads: “Circumstantial evidence is the proof of facts or circumstances that give rise to a reasonable inference of other facts that tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”¹ No other in[101]*101struction regarding or defining circumstantial evidence was given.

Testimony was adduced by the state that defendant had made statements tantamount to admitting he had killed his wife. This constituted direct evidence of his guilt. State v. Stevens, 467 S.W.2d 10, 25[24] (Mo.1971). With direct evidence on hand, even though most of the state’s evidence was circumstantial, it was not mandatory that the trial court give a circumstantial evidence instruction. State v. Orr, 493 S.W.2d 374, 376[7] (Mo.App.1973). Nevertheless, though it was not required that the trial court give an instruction on circumstantial evidence, since it did so it should have been correct. State v. Salmon, 216 Mo. 466, 529, 115 S.W. 1106, 1125[8] (1909).

The cases are replete with pronouncements that when the state relies on circumstantial evidence, the circumstances, to warrant conviction, must not only be consistent with each other and the hypothesis of defendant’s guilt but must point so clearly and satisfactorily to his guilt as to exclude every hypothesis of innocence [State v. Morse, 503 S.W.2d 450, 451 [2] (Mo.App.1973)], and whether required or not, if an instruction on circumstantial evidence is given, the foregoing pronouncements are necessary and required elements of the charge. State v. Gray, 163 Mo.App. 696, 147 S.W. 510[1] (1912). ‘“An instruction on circumstantial evidence should, in sub stance,2 advise the jury that “the circumstances must be consistent with each other and with the hypothesis that the defendant is guilty, and inconsistent with the theory of his innocence and with every reasonable hypothesis, except that of guilt.” ’ State v. Conway, 348 Mo. 580, 154 S.W.2d 128, 131.” State v. Huff, 353 Mo. 791, 798, 184 S.W.2d 447, 451 [8] (1945). Accord, State v. Burke, 462 S.W.2d 701, 703-704 (Mo.1971); MAI-CR 3.42. Instruction No. 6 utterly failed to advise the jury of the foregoing. That was prejudicial and reversible error. State v. Hoskins, 515 S.W.2d 502, 503[3] (Mo.1974).

The judgment is reversed and the cause remanded.

All concur.

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520 S.W.2d 99, 1975 Mo. App. LEXIS 1916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oliver-moctapp-1975.

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