giving of the following instruction in Missouri

1973In State v. Cooper, 71 Mo. 436 (1880), the court reversed and remanded a second-degree murder conviction for error in the giving of the following instruction: “ ‘If the jury believe from the evidence that the defendant willfully shot and killed William Grimes with a gun, and do not find that such killing was done with deliberation and premeditation, as those terms are defined in these instructions, then such killing would be murder in the second degree, unless the jury should find that the killing was justifiable.’ ” 71 Mo. at 440 .

1973In State v. Cooper, 71 Mo. 436 (1880), the court reversed and remanded a second-degree murder conviction for error in the giving of the following instruction: “ ‘If the jury believe from the evidence that the defendant willfully shot and killed William Grimes with a gun, and do not find that such killing was done with deliberation and premeditation, as those terms are defined in these instructions, then such killing would be murder in the second degree, unless the jury should find that the killing was justifiable.’ ” 71 Mo. at 440 .

1973See State v. Venable, Mo., 177 S.W. 308 , where an instruction defining `malice aforethought' as `the intentional doing of a wrongful act without just cause or excuse' (a frequent definition of `malice', see State v. Finnell, Mo., 280 S.W.2d 110, 113 ; State v. Ayers, Mo., 305 S.W.2d 484, 486 ) was held to be erroneous because `malice aforethought' means `malice with premeditation; that is, that the unlawful act intentionally done was determined upon before it was executed.'" 427 S.W.2d at 454 . *6 In State v. Cooper, 71 Mo. 436 (1880), the court reversed and remanded a second-degree murder co

1973See State v. Venable, Mo., 177 S.W. 308 , where an instruction defining `malice aforethought' as `the intentional doing of a wrongful act without just cause or excuse' (a frequent definition of `malice', see State v. Finnell, Mo., 280 S.W.2d 110, 113 ; State v. Ayers, Mo., 305 S.W.2d 484, 486 ) was held to be erroneous because `malice aforethought' means `malice with premeditation; that is, that the unlawful act intentionally done was determined upon before it was executed.'" 427 S.W.2d at 454 . *6 In State v. Cooper, 71 Mo. 436 (1880), the court reversed and remanded a second-degree murder co

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1934In view of the fact that mental soundness was the ultimate, controlling and decisive factor involved and that contestants offered several nonexpert witnesses who were permitted to give an opinion, *Page 781 based upon what they observed and heard at various times before and after the will was made, that testatrix was at such times of unsound mind it would seem to necessarily follow that the ruling that the attesting witness was not qualified to give an opinion as to mental soundness of the testatrix at the time she made the will and the refusal to permit him to give such opinion was prejudicia

1919S. 1909) defining this offense, the concealment, although not actually on the person, may be in such close proximity to the accused as to be within his easy reach and convenient control; and upon proof of this fact the offense is made out. [State v. McManus, 89 N. C. 555 .] However, if the essential condition omitted from this instruction appeared therein, no error can be *24 predicated upon its refusal because of. the giving of the following instruction, to-wit: “The court instructs the jury that it is not necessary that the revolving pistol should be in the defendant’s pocket of his clothing

1912Joseph, 143 Mo. 192 , this court considered the question of error assigned in the giving of the following instruction: ' “In estimating plaintiff’s damages, if the jury find for her, they will take into consideration not only the physical injury inflicted, the bodily pain and mental anguish endured and suffered, but may also allow such damages as appears from the evidence will reasonably result to her from her said injuries in the future,” etc. Discussing that instruction, the court (l. c. 203) said: “As to instruction numbered 4, it is only necessary to say that the damages are predicated onl

1907Defendant contends, however, that an instruction like this one was condemned by the Supreme Court in the case of Rains v. Railway, 71 Mo. 164 .

1891In Berry v. Wilson, 64 Mo. 164 , the supreme court ( qualifying Clark v. Kitchen, 52 Mo. 316 ) held that the giving of the following instruction was not erroneous : “ The court instructs the jury that the burden of proof is upon the plaintiff, and unless he satisfies the jury, by the preponderance of testimony, that he is the owner of the steer in controversy, you will find the issue for defendant.” We, therefore, overrule this assignment of error.

1891In Berry v. Wilson, 64 Mo. 164 , the supreme court ( qualifying Clark v. Kitchen, 52 Mo. 316 ) held that the giving of the following instruction was not erroneous : “ The court instructs the jury that the burden of proof is upon the plaintiff, and unless he satisfies the jury, by the preponderance of testimony, that he is the owner of the steer in controversy, you will find the issue for defendant.” We, therefore, overrule this assignment of error.