offered instruction in Missouri

2018In Scudamore v. Horton, 426 S.W.2d 142 , 146 (Ky. 1968), this court posed the question as "whether [appellants] can assign one reason for objecting to an instruction in the trial court and a different one on this appeal," and held "[o]bviously, *364 CR 51 condemns such a practice, and, in consequence, we must hold they cannot now be heard on these matters." (internal quotation omitted).

2018Tankersley argued to the trial court that it should instruct according to the rule set out in Johnson, Dykes, and Carmical v. Bullock , 251 S.W.3d 324 , 326 (Ky. App. 2007). 4 In my view, the majority opinion impermissibly reverses this verdict on grounds not raised in the trial court, and does so notwithstanding the clear direction of CR 51(3) : No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating

1992Id.

1982State v. Bigham, 628 S.W.2d 681 (Mo.App.1982).

1982State v. Howell, supra. Assault is a lesser included offense of robbery in the first degree; and the trial court’s refusal to give an offered instruction on it when the evidence satisfies the requirements of § 556.046(2), is reversible error.

1982Lauber v. Buck, 615 S.W.2d 89 (Mo.App.1981).

1979This contention fails because there is no motion pursuant to Rule 25.32 in the transcript, State v. Lawhorn, 574 S.W.2d 455, 458 (Mo.App.1978); and the record shows that the court offered the defense time to examine Detective Schwieterman in advance of his testimony and the offer was declined, State v. Maxie, 513 S.W.2d 338 (Mo.1974).

1978State v. McCoy, 530 S.W.2d 8 (Mo. App.1975); State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975); and State v. Lane, 537 S.W.2d 569 (Mo.App.1976).

1978State v. McCoy, 530 S.W.2d 8 (Mo. App.1975); State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975); and State v. Lane, 537 S.W.2d 569 (Mo.App.1976).

1978State v. McCoy, 530 S.W.2d 8 (Mo. App.1975); State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975); and State v. Lane, 537 S.W.2d 569 (Mo.App.1976).

1973State v. Engberg, supra, announces the rule that "* * * a defendant is ordinarily entitled to have given a correct instruction submitting the converse of the state's main instruction; but, if the given instructions fully and fairly cover the same subject matter contained in defendant's converse instruction, it is not prejudicial error to refuse the instruction offered." 377 S.W.2d 1 . c. 286 [11].

1973State v. Engberg, supra, announces the rule that “ * * * a defendant is ordinarily entitled to have given a correct instruction submitting the converse of the state’s main instruction; but, if the given instructions fully and fairly cover the same subject matter contained in defendant’s converse instruction, it is not prejudicial error to refuse the instruction offered.” 377 S.W.2d 1 . c. 286 [11].

1973The state contends that the trial court gave the main verdict-directing instruction with a general converse ending, which read as follows: ". . . and if you do not find each and all of the facts submitted to you for your finding as set forth in this Instruction, then you will find defendant Cornelius Dodson not guilty of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon." That this instruction given by the court covered the same subject matter contained in the converse instruction No. B offered by appellant and therefore it was not prejudicial error to refuse the offered in

1973The state contends that the trial court gave the main verdict-directing instruction with a general converse ending, which read as follows: “ . . . and if you do not find each and all of the facts submitted to you for your finding as set forth in this Instruction, then you will find defendant Cornelius Dodson not guilty of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon.” That this instruction given by the court covered the same subject matter contained in the converse instruction No. B offered by appellant and therefore it was not prejudicial error to refuse the offered i

1973The state contends that the trial court gave the main verdict-directing instruction with a general converse ending, which read as follows: ". . . and if you do not find each and all of the facts submitted to you for your finding as set forth in this Instruction, then you will find defendant Cornelius Dodson not guilty of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon." That this instruction given by the court covered the same subject matter contained in the converse instruction No. B offered by appellant and therefore it was not prejudicial error to refuse the offered in

1973The state contends that the trial court gave the main verdict-directing instruction with a general converse ending, which read as follows: “ . . . and if you do not find each and all of the facts submitted to you for your finding as set forth in this Instruction, then you will find defendant Cornelius Dodson not guilty of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon.” That this instruction given by the court covered the same subject matter contained in the converse instruction No. B offered by appellant and therefore it was not prejudicial error to refuse the offered i

1973State v. Mace, 429 S.W.2d 734, 738 [2] (Mo.1968), cert. denied, 393 U.S. 1122 , 89 S.Ct. 1003 , 22 L.

1962Co., 329 Mo. 1190 , 49 S.W.2d 103, 108 , concerning submission of a defendant's specifications of contributory negligence of the plaintiff, we said: "These specifications should be submitted in such a way that the jury may determine (1) whether they be true or false, (2) whether they constitute negligence under the surrounding facts and circumstances in evidence, and (3) whether they concurred with the negligence of defendant as a direct, proximate, and efficient cause or causes of the injuries and death complained of." The offered instruction did not require a finding that the specifications

1962Co., 329 Mo. 1190 , 49 S.W.2d 103, 108 , concerning submission of a defendant's specifications of contributory negligence of the plaintiff, we said: "These specifications should be submitted in such a way that the jury may determine (1) whether they be true or false, (2) whether they constitute negligence under the surrounding facts and circumstances in evidence, and (3) whether they concurred with the negligence of defendant as a direct, proximate, and efficient cause or causes of the injuries and death complained of." The offered instruction did not require a finding that the specifications

1962Burcham v. Drainage District No. 25, Mo. App., 280 S.W.2d 683 .

1962Appellant relies principally upon State v. Chaney, Mo.Sup., 349 S.W.2d 238 , in which it is held that in certain situations the court is required to give a correct instruction on a *853 collateral issue when requested even though the offered instruction is erroneous.

1961However, on the subjects set out in State v. Bounds, supra, (305 S.W.2d loc. cit. 491) and other cases herein cited and similar subjects, the principles of which are applicable to the facts shown by the evidence in the case and to the charges being tried, we hold that it is the duty of the trial court to give a correct instruction if an instruction on the subject is offered by defendant even though the offered instruction is erroneous. *245 Not only do we find this to be the rule established by the overwhelming weight of our decisions but we also believe it to be a reasonable rule.

1961However, on the subj ects set out in State v. Bounds, supra, (305 S.W.2d loc. cit. 491) and other cases herein cited and similar subjects, the principles of which are applicable to the facts shown by the evidence in the case and to the charges being tried, we hold that it is the duty of the trial court to give a correct instruction if an instruction on the subject is offered by defendant even though the offered instruction is erroneous.

1947State v. Fraley, 342 Mo. 442 , 116 S. W. (2d) 17 .

1947State v. Fraley, 342 Mo. 442 , 116 S. W. (2d) 17 .

1931Co. v. Levy (Tex.), 100 S. W. 195 ; 13 Encyclopaedia of Evidence, p. 510.] [See also Orchard v. Railroad, supra.] Complaint is made of the refusal of the court to give defendant’s instructions A, and F and of the giving of defendant’s offered instruction A as modified by the court.