objectionable instruction in Missouri

1976None of the objectionable factors found in Faught, supra, appear, and although the defendant has coupled the claim of error with a claim of excessiveness as Chambers and McCormick both suggest is necessary, the trial court has clearly ruled that in considering the effect of the argument in the light of the claim of excessiveness, the argument did not affect the size of the verdict, nor cause it to be excessive.

1961This court said; “As to collateral matters, it is for the respective parties to ask such instructions as they may be entitled to.” However, it also said if an objectionable instruction had been asked and refused “the court should have given a proper instruction on the subject.” The Kilgore case was followed in State v. Brooks, 92 Mo. 542, 588 , 5 S.W. 257 , 330, by holding an instruction concerning an extra-judicial confession to be a collateral matter; but Judge Sherwood dissented pointing out the adoption of the 1879 statute (now 546.070) and contending that both the statute and the cases ab

1961This court said: "As to collateral matters, it is for the respective parties to ask such instructions as they may be entitled to." However, it also said if an objectionable instruction had been asked and refused "the court should have given a proper instruction on the subject." The Kilgore case was followed in State v. Brooks, 92 Mo. 542, 588 , 5 S.W. 257 , 330, by holding an instruction concerning an extra-judicial confession to be a collateral matter; but Judge Sherwood dissented pointing out the adoption of the 1879 statute (now 546.070) *242 and contending that both the statute and the cas

1961In State v McNamara, 100 Mo. 100, 106 , 13 S. W. 938 , 944, the defendant requested an instruction on good character (not at that time included in the statutory requirement) which this court held to be erroneous and which the trial court had refused.

1961In State v. McNamara, 100 Mo. 100, 106 , 13 S. W. 938 , 944, the defendant requested an instruction on good character (not at that time included in the statutory requirement) which this court held to be erroneous and which the trial court had refused.

1943We have moved away from our holdings that an instruction as to the legal effect of certain kinds of evidence is proper and is not to be condemned as an unauthorized comment on the evidence, especially with respect to extra judicial statements by an accused, since State v. Hayes (Mo. 1924), 262 S. W. 1034 , 1036 [5], State v. Simenson (1914), 263 Mo. 264, 267 (1), 172 S. W. 601, 602 [1, 2], A more objectionable instruction was condemned in State v. Duncan (1935), 336 Mo. 600, 613 , 80 S. W. (2d) 147, 154 , but part of the language employed is applicable here, viz.: “ . . .

1943We have moved away from our holdings that an instruction as to the legal effect of certain kinds of evidence is proper and is not to be condemned as an unauthorized comment on the evidence, especially with respect to extra judicial statements by an accused, since State v. Hayes (Mo. 1924), 262 S. W. 1034 , 1036 [5], State v. Simenson (1914), 263 Mo. 264, 267 (1), 172 S. W. 601, 602 [1, 2], A more objectionable instruction was condemned in State v. Duncan (1935), 336 Mo. 600, 613 , 80 S. W. (2d) 147, 154 , but part of the language employed is applicable here, viz.: “ . . .

1932We do not, therefore, uphold defendants' contention that the statutes in question limit the power and duty of the circuit court, which is made the governmental agency in forming this public corporation in question, to inquire into and ascertain the facts necessarily precedent to its incorporation; and as held in Bartlett Trust Co. v. Elliott, supra, the statute requires notice "with the opportunity afforded for parties interested to file objections denying the allegation of the petition." [6] Another view of this matter is equally fatal to defendants' contentions.

1932A reading of that case, however, discloses that Judge FARRIS, who wrote the opinion, was thoroughly familiar with this drainage act and had before him the objectionable clause limiting a landowner's objections to a mere denial of the statements required to be made in the articles of association presented to the circuit court for hearing, and the court construed the act to permit objections to be raised and considered and did there consider objections such as that "there are unlawfully included within the limits of the proposed district certain lands which are not swamp but high and hilly." and

1932A reading of that case, however, discloses that Judge FARRIS, who wrote the opinion, was thoroughly familiar with this drainage act and had before him the objectionable clause limiting a landowner's objections to a mere denial of the statements required to be made in the articles of association presented to the circuit court for hearing, and the court construed the act to permit objections to be raised and considered and did there consider objections such as that "there are unlawfully included within the limits of the proposed district certain lands which are not swamp but high and hilly." and

1904In Kirchner v. Collins, 152 Mo. 394 , the Supreme Court passed an instruction containing the identical phrase without condemnation.