State v. Ervin , 344 Mo. 1029 ( 1939 )

LEEDY, J.

Appellant, Lloyd Ervin, and four others, were jointly charged by information with the crime of murder in the first degree, in having killed one Fred Fulkerson, at the County of Stoddard, on or about the 26th day of July, 1936. A severance was ordered, and appellant was tried separately in the Circuit Court of Dunklin County, to which the cause was awarded on change of venue. He was convicted of manslaughter, and sentenced to a term of eight years in the penitentiary, and he appeals.

Our attention has not been called to a case in which there were more deficiencies, imperfections and irregularities in the matter of perfecting and submitting an appeal than in the case at bar. These need not be detailed, but in view of the disposition.being made of the case, and the reason therefor, it is said merely in passing. At the time of the oral argument, no certified copy of the bill of exceptions had been filed, and for that reason respondent’s brief was limited to the record proper. However, by agreement of counsel, appellant was permitted to file on that day what purported to be a copy of the bill of exceptions, and respondent was granted additional time in which to brief the case on the merits. The principal points relied on in oral argument were: (1) That error was committed in overruling appellant’s application for a continuance; (2) in the giving of Instructions No. 16 and No. 17 on the part of the State.

Appellant assails said instructions “because they are so lined and interlined and marginal written as to be nondecipherable and unintelligible by the average juryman, and they do not properly declare the law of self-defense, if they could be read.” That the point may be more readily understood, we reproduce and set forth below photostatic copies of the instructions complained of, as follows:

The sole point mentioned by the Attorney General’s brief on the merits is that with respect to the matter of giving said instructions in the form in which they were given. Of them, his brief says:

“Since briefing this case on the record proper, appellant had filed in this court photostatic copy of instructions numbers 16 and 17 given in this trial. Bespondent has been unable to transpose these instructions because of the jumbled form of words and phrases therein used, and hence we are suggesting that the court consider the photostatic copy of the instructions filed as a part of the record in this case, and excuse us for our inability to abstract same in this printed brief.

“Instructions 16 and 17 which the court gave on the issue of manslaughter are so awkwardly drawn without punctuation marks by pen and ink in illegible free hand that they display a jumble of words and phrases. These instructions, by the photostatic copies filed on appeal, show words and phrases partially deleted by ink scratches and other words and phrases interlined horizontally and other words and phrases tacked on to the instruction by writing and scratching up and down the margin on both sides of the written instructions and also written upside down across the top of the written instructions. Such an awkward method of giving instructions to a jury in a murder case should not be sanctioned where the jury in the exercise of ordinary intelligence, unless by guessing at meaning of illegible words and jumbled phrases, could not possibly sort out the words, phrases and deletions into a short clear statement of the law.

“We have tried to transpose these instructions into a clear statement of the law of'manslaughter as therein attempted and each time our finished product is an entirely different and incoherent state ment of tbe law of manslaughter. We admit these two instructions, by reason of their awkwardness in form and their jumble of substance, are confusing to us.

“We submit that the jury was as confused as we are when they attempted to follow the tenor of instructions 16 and 17 in returning the manslaughter verdict which they did return. We do not. believe that the most attentive juror could understand instructions 16 and 17 in their confused form.

“We suggest that the cause be reversed and remanded for new trial. ’ ’

The instructions speak for themselves, and we think the attack on them must be sustained. We feel that, in form alone, they do not constitute a proper guide by which the jury might find the facts and issues in controversy. To us they are not only confusing, but wholly unintelligible. It will not do to submit instructions in the nature of jig-saw puzzles. The judgment is reversed and the cause remanded.

All concur.