criticism instruction in Missouri

2015This criticism of the defense’s trial theory does not even approach the boundary of what Missouri courts have deemed impermissible in closing arguments.” Id.

1941This has been the unvarying holding from Pearce v. Dansforth, 13 Mo. 360 , to Jurkiewicz v. Insurance Company, 229 Mo. App. 262 , 76 S. W. (2d) 721 , l. c. 723, and we find no contrary view. *25 It is charged that “The trial court erred in giving instruction P-G-l in behalf of plaintiff.” The criticism is of the instruction reading: “P. G. 1.

1941This has been the unvarying holding from Pearce v. Dansforth, 13 Mo. 360 , to Jurkiewicz v. Insurance Company, 229 Mo. App. 262 , 76 S. W. (2d) 721 , l. c. 723, and we find no contrary view. *25 It is charged that “The trial court erred in giving instruction P-G-l in behalf of plaintiff.” The criticism is of the instruction reading: “P. G. 1.

1941This has been the unvarying holding from Pearce v. Dansforth, 13 Mo. 360 , to Jurkiewicz v. Insurance Company, 229 Mo. App. 262 , 76 S. W. (2d) 721 , l. c. 723, and we find no contrary view. *25 It is charged that “The trial court erred in giving instruction P-G-l in behalf of plaintiff.” The criticism is of the instruction reading: “P. G. 1.

1938In the comparatively recent case of State v. Malone, 327 Mo. 1217 , 39 S. W. (2d) 786 , this court in an opinion by Cooley, C., exhaustively reviewed the subject of burden of proof in a criminal case.

1938In the comparatively recent case of State v. Malone, 327 Mo. 1217 , 39 S. W. (2d) 786 , this court in an opinion by Cooley, C., exhaustively reviewed the subject of burden of proof in a criminal case.

1937This contention is doubtless based upon what we said in State v. Warren, 326 Mo. 843 , 856, 33 S.W.2d 125 , 130, (15), as follows: "In defining `deliberation,' we do not think that the words `just' or `lawful' should be used in connection with provocation where the evidence develops several degrees of homicide, or other than first degree murder.

1937This contention is doubtless based upon what we said in State v. Warren, 326 Mo. 843 , 856, 33 S.W.2d 125 , 130, (15), as follows: "In defining `deliberation,' we do not think that the words `just' or `lawful' should be used in connection with provocation where the evidence develops several degrees of homicide, or other than first degree murder.

1935Certain cases cited by it such , as Smoot v. Kansas City, 194 Mo. 513 , 92 S. W. 363 , indicáte that the complaint may be that the instruction does not limit plaintiff’s loss of earnings to the amount claimed in the petition, although the instruction does not mention loss of earn *201 ings.

1935Certain cases cited by it such , as Smoot v. Kansas City, 194 Mo. 513 , 92 S. W. 363 , indicáte that the complaint may be that the instruction does not limit plaintiff’s loss of earnings to the amount claimed in the petition, although the instruction does not mention loss of earn *201 ings.

1935This criticism of the instruction is not sound.- On this point see, also, O’Leary v. Scullin Steel Company, 303 Mo. 363, 385 , 260 S. W. 55, 62 .

1935This criticism of the instruction is not sound.- On this point see, also, O’Leary v. Scullin Steel Company, 303 Mo. 363, 385 , 260 S. W. 55, 62 .

1934The facts and circumstances in evidence were such that presumption did arise from them and it was proper for the court to tell the jury that in arriving at its verdict it could consider the presumptions which were reasonable. [Wheeler v. Bowles, 163 Mo. 398 , 408.] Plaintiff's instruction No. 7, which the defendant says was erroneous, told the jury that the burden of proof was upon plaintiff to prove that her husband died on April 13, 1929, and that his death resulted "solely from bodily injuries effected directly and independently from all other causes through external, violent and accidental

1932This court has ruled that under such circumstances an assignment of error is not reviewable. [O'Howell v. Miller, 11 S.W.2d 1068 .] However, the criticism of the instruction relates chiefly to failure of proof and failure to follow the petition, both of which have been discussed.

1929In such circumstances the rule above quoted applies and instructions in substantially the same language have frequently met the approval of this court. [State v. Evans, 124 Mo. 397 , 28 S.W. 8 ; State v. Elliott, 98 Mo. 150 , l.c. 158, 11 S.W. 566 ; State v. Minor, 193 Mo. 597 , l.c. 610-12, 92 *Page 1251 1251 S.W. 466 .] The criticism that the instruction as worded limits defendant in meeting or repelling the presumption to evidence introduced on behalf of the State is not justified.

1929In such circumstances the rule above quoted applies and instructions in substantially the same language have frequently met the approval of this court. [State v. Evans, 124 Mo. 397 , 28 S.W. 8 ; State v. Elliott, 98 Mo. 150 , l.c. 158, 11 S.W. 566 ; State v. Minor, 193 Mo. 597 , l.c. 610-12, 92 *Page 1251 1251 S.W. 466 .] The criticism that the instruction as worded limits defendant in meeting or repelling the presumption to evidence introduced on behalf of the State is not justified.

1929In such circumstances the rule above quoted applies and instructions in substantially the same language have frequently met the approval of this court. [State v. Evans, 124 Mo. 397 , 28 S.W. 8 ; State v. Elliott, 98 Mo. 150 , l.c. 158, 11 S.W. 566 ; State v. Minor, 193 Mo. 597 , l.c. 610-12, 92 *Page 1251 1251 S.W. 466 .] The criticism that the instruction as worded limits defendant in meeting or repelling the presumption to evidence introduced on behalf of the State is not justified.

1929In such circumstances the rule above quoted applies and instructions in substantially the same language have frequently met the approval of this court. [State v. Evans, 124 Mo. 397 , 28 S.W. 8 ; State v. Elliott, 98 Mo. 150 , l.c. 158, 11 S.W. 566 ; State v. Minor, 193 Mo. 597 , l.c. 610-12, 92 *Page 1251 1251 S.W. 466 .] The criticism that the instruction as worded limits defendant in meeting or repelling the presumption to evidence introduced on behalf of the State is not justified.

1926It is said that the ruling of the Court of Appeals approving the instruction contravenes two decisions of this court: Reed v. Pelletier, 28 Mo. 173 , and State v. O’Neill, 151 Mo. 67 .

1926It is said that the ruling of the Court of Appeals approving the instruction contravenes two decisions of this court: Reed v. Pelletier, 28 Mo. 173 , and State v. O’Neill, 151 Mo. 67 .

1926But had the instruction not been hypothesized upon the ability of the deceased to hear the whistle if sounded, which hypothesis is embodied in plaintiff's instruction herein, it would seem that the instruction would have been proper under our ruling in Preston v. Railroad Co., 292 Mo. 442 , 455, whereat we said: "It is further contended that the jury should have been required to find, before verdict for respondent, that respondent could have heard a warning had one been given.

1919As to the criticism that the instruction is too broad as to defendant’s duty to keep the lights burning, we think that the instruction is subject to some criticism on this score. [Myers v. City of Kansas, 108 Mo. 480 , 18 S. W. 914 .] However, all the evidence m the case, both that of the defendant as well as that of the plaintiff, as it appears in the record before us, shows that the defendant had not complied with the ordinance requiring the said excavation to be fenced in with a substantial fence not less than three feet high and so placed as to prevent persons from falling into the excavat

1914It seems to me that the criticism of an instruction similar to this is the case of Chamberlain v. Railroad, 133 Mo. 587, 605 , 33 S. W. 437 , 34 S. W. 842 , is applicable to instruction numbered 2, given in this case, to-wit: “But the instruction would not he proper in all cases, as the signal if given in time would be all that was required to apprise a trespasser, until it is seen he apparently does not hear it.

1914It seems to me that the criticism of an instruction similar to this is the case of Chamberlain v. Railroad, 133 Mo. 587, 605 , 33 S. W. 437 , 34 S. W. 842 , is applicable to instruction numbered 2, given in this case, to-wit: “But the instruction would not he proper in all cases, as the signal if given in time would be all that was required to apprise a trespasser, until it is seen he apparently does not hear it.

1912It was the duty of the jury to read all of the instructions given together, and when so read, and especially with instructions numbered one, given for respondent, it cannot be seen in what possible manner it could have worked prejudicially to the rights of appellant. [Harrington v. City of Sedalia, 98 Mo. 583 .] We, therefore, hold there was no error in giving that instruction. ’ ’ The criticism of instruction numbered three is fully answered in our opinion in Wilbur v. Railroad, 110 Mo. App. 689 .

1912It was the duty of the jury to read all of the instructions given together, and when so read, and especially with instructions numbered one, given for respondent, it cannot be seen in what possible manner it could have worked prejudicially to the rights of appellant. [Harrington v. City of Sedalia, 98 Mo. 583 .] We, therefore, hold there was no error in giving that instruction. ’ ’ The criticism of instruction numbered three is fully answered in our opinion in Wilbur v. Railroad, 110 Mo. App. 689 .

1908In support of this contention defendant cites us to the case of Hawes v. Stock-Yards Company, 103 Mo. 60 .

1906The negligent act of starting is, in that event, to be regarded as the proximate cause of the injury. [Cases cited in Hensler v. Stix, 113 Mo. App. 162, 178 , 88 S. W. 108 .] And on this criticism of the instruction it may be remarked that the evidence of plaintiff would warrant the inference that the movement of the elevator as she was leaving it, caused her to fall and thrust her foot between the floor of the car and the bottom of the adjacent door.

1906The negligent act of starting is, in that event, to be regarded as the proximate cause of the injury. [Cases cited in Hensler v. Stix, 113 Mo. App. 162, 178 , 88 S. W. 108 .] And on this criticism of the instruction it may be remarked that the evidence of plaintiff would warrant the inference that the movement of the elevator as she was leaving it, caused her to fall and thrust her foot between the floor of the car and the bottom of the adjacent door.

1903On the contrary, they are approved in the cases of State v. Reavis, 71 Mo. 419 , State v. Burlingame, 146 Mo. 207 , State v. Harrold, 38 Mo. 496 , and are in perfect accord with the overwhelming weight of authority in the other States.

1903On the contrary, they are approved in the cases of State v. Reavis, 71 Mo. 419 , State v. Burlingame, 146 Mo. 207 , State v. Harrold, 38 Mo. 496 , and are in perfect accord with the overwhelming weight of authority in the other States.

1903On the contrary, they are approved in the cases of State v. Reavis, 71 Mo. 419 , State v. Burlingame, 146 Mo. 207 , State v. Harrold, 38 Mo. 496 , and are in perfect accord with the overwhelming weight of authority in the other States.

1899This instruction has proven to be a good workable instruction for many years, is not calculated to mislead a jury, and continues to command our approval. (8) The same may be said of instruction No. 18, in regard to evidence of good character, which is criticised in like manner, but which in substance has frequently been approved by this court. [State v. Jones, 78 Mo. 278 ; State v. Kilgore, 70 Mo. 546 ; State v. McMurphy, 52 Mo. 251 ; State v. Alexander, 66 Mo. loc. cit. 160.] It is not subject to ¡the criticism on the instruction in the last case. (9) .

1899This instruction has proven to be a good workable instruction for many years, is not calculated to mislead a jury, and continues to command our approval. (8) The same may be said of instruction No. 18, in regard to evidence of good character, which is criticised in like manner, but which in substance has frequently been approved by this court. [State v. Jones, 78 Mo. 278 ; State v. Kilgore, 70 Mo. 546 ; State v. McMurphy, 52 Mo. 251 ; State v. Alexander, 66 Mo. loc. cit. 160.] It is not subject to ¡the criticism on the instruction in the last case. (9) .