wording instruction in Missouri

2017We believe the wording of the instruction herein is subject to a misinterpretation that Storm was only required to use ordinary care in complying with his statutory duty." The Court of Appeals emphasized that, pursuant to Henson v. Klein , 319 S.W.3d 413 , 421 (Ky. 2010), "[w]hen a statutory duty is supported by evidence, it must be incorporated into a jury instruction as a 'specific duty." ' Henson further stated that: Moreover, when a statutory duty is applicable, the jury instructions should, after explaining the general duty, specify that it "includes" certain enumerated specific duties be

2017Id.

2011Id. at 123 .

2005Blackmon’s argument is founded entirely upon the decision in State v. Schleiermacher, 924 S.W.2d 269 (Mo. banc 1996), where the Supreme Court held that the jury instructions used were deficient because they put forward only a single incident of conduct where multiple incidents were required to support a conviction.

2002The State further contends it is well-established that that when a jury poll reveals the verdict is not unanimous, or when a verdict is seemingly inconsistent or ambiguous, “the jury should be sent back for further deliberations to resolve the ambiguity,” citing and relying primarily on State v. Peters, 855 S.W.2d 345 (Mo. banc 1993) and State v. Lashley, 667 S.W.2d 712 (Mo. banc 1984).

2002The State further contends it is well-established that that when a jury poll reveals the verdict is not unanimous, or when a verdict is seemingly inconsistent or ambiguous, “the jury should be sent back for further deliberations to resolve the ambiguity,” citing and relying primarily on State v. Peters, 855 S.W.2d 345 (Mo. banc 1993) and State v. Lashley, 667 S.W.2d 712 (Mo. banc 1984).

1979Defendant concedes that it is proper for the trial court to inquire where the jury stands numerically, State v. Baker, 293 S.W.2d 900 (Mo.1956).

1971As said, under the wording of that rule, as interpreted by Green, supra, the right to a change of judge depends on the litigant’s sworn belief that the judge is interested or prejudiced rather than on the evidentiary fact that the judge is interested or prejudiced.

1968Counsel urges that the presumption accompanies a defendant throughout the trial (State v. Washington, Mo., 364 S.W.2d 572 ) and that the wording of the instruction in State v. Lively, 311 Mo. 414 , 279 S.W. 76 (that the presumption protects defendant notwithstanding the State may *304 have established a prima facie case) is the proper one and should have been used.

1968Counsel urges that the presumption accompanies a defendant throughout the trial (State v. Washington, Mo., 364 S.W.2d 572 ) and that the wording of the instruction in State v. Lively, 311 Mo. 414 , 279 S.W. 76 (that the presumption protects defendant notwithstanding the State may *304 have established a prima facie case) is the proper one and should have been used.

1968Counsel urges that the presumption accompanies a defendant throughout the trial (State v. Washington, Mo., 364 S.W.2d 572 ) and that the wording of the instruction in State v. Lively, 311 Mo. 414 , 279 S.W. 76 (that the presumption protects defendant notwithstanding the State may *304 have established a prima facie case) is the proper one and should have been used.

1968The very wording of the instruction does distinguish between “evidence” and “facts”; it refers to a finding “from the evidence”; it tells the jury that “unless you find the facts to be as above stated,” you will acquit; and in the first paragraph there is the added caution, “if such be your finding.” In the absence of the offer of an express converse (which it was not the court’s duty to prepare and give, — Engberg, supra) there was no other way in which the issues could be submitted properly.

1968This is not a case where defendant advanced a specific theory of defense and asked an instruction “in keeping with it.” Engberg, supra. The defense here was an attack upon the “credibility of the state’s case.” id.

1963The wording of instruction B-2 apparently was taken from language used in Stephens v. Kansas City Gas Co., 354 Mo. 835 , 191 S.W.2d 601, 609 , where it was said that “The Gas Company was only required to use such degree of care as an ordinarily prudent person would exercise under like circumstances in dealing with such a dangerous commodity,” and in which it was held reversible error to instruct that “due care” as used in instructions with reference to the duty of a supplier of gas meant “the highest degree of care” defined as “that care which a very careful and prudent person would use under

1963The wording of instruction B-2 apparently was taken from language used in Stephens v. Kansas City Gas Co., 354 Mo. 835 , 191 S.W.2d 601, 609 , where it was said that “The Gas Company was only required to use such degree of care as an ordinarily prudent person would exercise under like circumstances in dealing with such a dangerous commodity,” and in which it was held reversible error to instruct that “due care” as used in instructions with reference to the duty of a supplier of gas meant “the highest degree of care” defined as “that care which a very careful and prudent person would use under

1963It is suggested, however, that if in any future trial the court, in its discretion, finds it advisable to give an instruction on the credibility of witnesses, as it did in the trial here reviewed, the case of State v. Fingers, Mo., 357 S.W.2d 89 , should be taken into consideration; and that, if any instruction be given on the subject of the good character of the defendant, the case of State v. Jackson, Mo., 369 S.W.2d 199 , be taken into consideration in the wording of such instruction.

1963It is suggested, however, that if in any future trial the court, in its discretion, finds it advisable to give an instruction on the credibility of witnesses, as it did in the trial here reviewed, the case of State v. Fingers, Mo., 357 S.W.2d 89 , should be taken into consideration; and that, if any instruction be given on the subject of the good character of the defendant, the case of State v. Jackson, Mo., 369 S.W.2d 199 , be taken into consideration in the wording of such instruction.

1962Contrary to defendant’s contention, we find the wording in an instruction given in the case of Anderson v. Bell, Mo., 303 S.W.2d 93 , similar to the wording in the instruction under review in the instant case.

1962In that case the jury was told: “ * * * if you find that defendant Bell, in the exercise of the highest degree of care could have seen the automobile in which plaintiff was a passenger being driven southwardly on Broadway, and could have known that there was a probable danger of collision between the two automobiles, in time thereafter, under the circumstances then and there existing, to have avoided the collision and injury to plaintiff, if any, by sounding an effective warning of the approach, proximity and movement of defendant Bell’s automobile, and by swerving the same to the right, but t

1962In that case the jury was told: “ * * * if you find that defendant Bell, in the exercise of the highest degree of care could have seen the automobile in which plaintiff was a passenger being driven southwardly on Broadway, and could have known that there was a probable danger of collision between the two automobiles, in time thereafter, under the circumstances then and there existing, to have avoided the collision and injury to plaintiff, if any, by sounding an effective warning of the approach, proximity and movement of defendant Bell’s automobile, and by swerving the same to the right, but t

1961The Supreme Court of Kansas, in Perry v. Schmitt, supra, 184 Kan. 1 . c. 763, 764, 339 P.2d 1 . c. 40, had before it an instruction which advised the jury that the defendant must have actually realized the imminence of danger of injury to permit a finding of gross and wanton negligence.

1961Note how that portion of the instruction-reads : “ * * * the actor must be deemed' to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because he was indifferent to whether it occurred or not.” The wording of the instruction seems to have been taken from-the opinion in the case of Bailey v. Resner, 168 Kan. 439 , 214 P.2d 323 .

1961Note how that portion of the instruction-reads : “ * * * the actor must be deemed' to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because he was indifferent to whether it occurred or not.” The wording of the instruction seems to have been taken from-the opinion in the case of Bailey v. Resner, 168 Kan. 439 , 214 P.2d 323 .

1961The Supreme Court of Kansas, in Perry v. Schmitt, supra, 184 Kan. 1 . c. 763, 764, 339 P.2d 1 . c. 40, had before it an instruction which advised the jury that the defendant must have actually realized the imminence of danger of injury to permit a finding of gross and wanton negligence.

1957In the recent case of Moss v. Mindlin’s Inc., Mo., 301 S.W.2d 761 , it was held that an instruction was hot erroneous which told the jury that it might take into consideration various elements, including pain, the nature, character and extent of the injuries, all impairment of earning power, and other elements, awarding to plaintiff, however, damages in such amount as would reasonably compensate him.

1948Consult Lasswell v. Lasswell (Mo. App.), 192 S.W.2d 206 , 207[2]; Melenson v. Howell, 344 Mo. 1137 , 1141[1], 130 S.W.2d 555 , 557[4, 5, 7].

1948Consult Lasswell v. Lasswell (Mo. App.), 192 S.W.2d 206 , 207[2]; Melenson v. Howell, 344 Mo. 1137 , 1141[1], 130 S.W.2d 555 , 557[4, 5, 7].

1918Under the circumstances the error, if any, in the wording of this instruction cannot be said to have been prejudicial. [See Hartpence v. Rogers, 143 Mo. 623 , loc. cit. 636, 45 S. W. 650 ; Bell v. United Rys.

1918Under the circumstances the error, if any, in the wording of this instruction cannot be said to have been prejudicial. [See Hartpence v. Rogers, 143 Mo. 623 , loc. cit. 636, 45 S. W. 650 ; Bell v. United Rys.

1918Co., 183 Mo. App. 334 , 166 S. W. 1100 ; Gillogly v. Dunham, 187 Mo. App. 551 , loc. cit 559, 174 S. W. 118 ; Sotebier v. Transit Co., 203 Mo. 702 , loc. cit. 714, 102 S. W. 651 ; Owens v. Fanning, 205 S. W. 69 .] Y.

1918Co., 183 Mo. App. 334 , 166 S. W. 1100 ; Gillogly v. Dunham, 187 Mo. App. 551 , loc. cit 559, 174 S. W. 118 ; Sotebier v. Transit Co., 203 Mo. 702 , loc. cit. 714, 102 S. W. 651 ; Owens v. Fanning, 205 S. W. 69 .] Y.

1918Co., 183 Mo. App. 334 , 166 S. W. 1100 ; Gillogly v. Dunham, 187 Mo. App. 551 , loc. cit 559, 174 S. W. 118 ; Sotebier v. Transit Co., 203 Mo. 702 , loc. cit. 714, 102 S. W. 651 ; Owens v. Fanning, 205 S. W. 69 .] Y.

1918Co., 183 Mo. App. 334 , 166 S. W. 1100 ; Gillogly v. Dunham, 187 Mo. App. 551 , loc. cit 559, 174 S. W. 118 ; Sotebier v. Transit Co., 203 Mo. 702 , loc. cit. 714, 102 S. W. 651 ; Owens v. Fanning, 205 S. W. 69 .] Y.