State v. Philpott. he held the knife, in an attempt to ward off the blows of deceased, and in so doing struck deceased with the knife and inflicted the fatal wound. The State, in rebuttal, offered testimony tending to show that the defendant bore a bad reputation for morality in the community in which he lived. The cross-examination of the State's witness in rebuttal developed the fact that the deceased also had a bad reputation for morality. The court submitted the case to the jury under instructions which authorized a conviction of murder in the first or second degree, or an acquittal on the ground of self-defense or on the theory of an accidental killing. The jury returned into court the following verdict: "We, the jury, find the defendant guilty as charged in the indictment of murder in the second degree and assess his punishment at ten years in the penitentiary." When the verdict was read the court, with the consent of the jury, corrected the form of the verdict so that it read as follows: "We, the jury, find the defendant guilty as charged in the indictment of murder in the second degree and assess his punishment by imprisonment in the penitentiary for a term of ten years." The verdict as corrected was read to the jury and upon a poll of the jury each member thereof said that the verdict as corrected was his verdict. I. Appellant contends that the court committed error in permitting the State, after the defendant had testified as a witness in his own behalf, to introduce testimony in rebuttal showing that defendant's reputation for morality was bad. Appellant's claim is that the inquiry should have been limited to the question of his reputation for truth and veracity. We cannot give our assent to this contention. It is the law of this State that when a defendant in a criminal case goes State v. Philpott. upon the stand as a witness in his own behalf, the State may attack his credibility as a witness by showing that his reputation for morality in the community in which he resides, is bad. [State v. Priest, 215 Mo. 1; State v. Beckner, 194 Mo. 281; State v. Weeden, 133 Mo. 70.] II. Complaint is made of instruction numbered 10, given at the request of the State, upon the subject of self-defense. We shall not set out this instruction. It is almost identical in form with instruction numbered 13 in State v. Gee, 85 Mo. 1. c. 650, which has so many times received the approval of this court as a correct declaration of the law of self-defense that we do not think it necessary to discuss it. III. It is assigned as error that the court changed the verdict returned by the jury and that, as changed, it was the verdict of the court and not of the jury. The change made was merely as to its wording. As returned by the jury it found the defendant guilty of murder in the second degree, as charged in the indictment, and assessed his punishment "at ten years in the penitentiary." As corrected by the court it found the defendant guilty of murder in the second degree, as charged in the indictment, and assessed his punishment "by imprisonment in the penitentiary for a term of ten years." The verdict as corrected was read to the jury. The jury was polled and each member thereof, in answer to the question whether as corrected and read it was his verdict, said that it was. The change was unimportant. It was sufficient and would have supported the judgment as returned. [State v. Beverly, 201 Mo. 550.] This complaint is wholly lacking in merit. [State v. Chumley, 67 Mo. 41.] IV. The assignment of error most strongly urged at the oral argument and in appellant's brief is that State v. Philpott. the court failed to instruct the jury on manslaughter in the fourth degree, and overruled a motion for a new trial and specifically called attention to the failure to so instruct. On this assignment of error the record presents the following situation: The defendant, testifying as a witness in his own behalf, admitted that he killed deceased by stabbing him in the neck with a butcher knife. Assuming the truth of such testimony, a presumption of law would arise, in the absence of any other evidence, that the defendant was guilty of murder in the second degree. But the defendant further testified (and his testimony is the only direct evidence in the case as to how and why he killed deceased) that deceased assaulted him by striking him on the head with an iron lid lifter and was still beating him when he struck the fatal blow. If this testimony was true it afforded a lawful provocation for the killing in a heat of passion and reduced the crime from murder to manslaughter in the fourth degree. [State v. Barrett, 240 Mo. 161; State v. Gartrell, 171 Mo. 489; State v. Starr, 38 Mo. 1. c. 277; State v. Sebastian, 215 Mo. l. c. 80.] With such evidence in the case the defendant was entitled to an instruction on slaughter in the fourth degree. [State v. Bidstrup, 237 Mo. 273.] Although the court failed to give an instruction. on manslaughter in the fourth degree and although the defendant properly preserved such failure as a ground of the motion for a new trial, we must hold that such action of the court was not prejudicial error, and for the following reason: At the close of all the evidence and before the court instructed the jury, the following recital appears in the record, to-wit: "By Mr. Miller: I insist, as the prosecuting attorney did not at the close of the testimony elect to stand on murder in the second degree or manslaughter in the fourth degree, that now the court cannot give State v. Philpott. instructions upon these two grades of crime; that under the law at present, if the prosecuting attorney elects to prosecute for a less degree than that which defendant is indicted for, he could do so, but not electing, is confined to the charge in the indictment. "By the Court: Overruled. "To which ruling on the part of the court, the defendant, by counsel, then and there duly excepted at the time and still excepts.' It thus appears from the record that the defendant, by objecting to the court instructing on any degree of homicide less than that charged, placed himself in a position to assign error to the action of the court in the motion for a new trial and on appeal, if it had given an instruction on manslaughter in the fourth degree. When the court omitted to instruct on manslaughter it was merely doing what the defendant insisted that it should do. The action of the court therefore clearly falls within the law of self-invited error. [State v. Keele, 105 Mo. 38; State v. Cushenberry, 157 Mo. 168; State v. Zorn, 202 Mo. 12.] In the case of State v. Keele, supra, this court held, as stated in the syllabus, that: "A defendant who requests the court to limit its instruction to the specific offense charged in the indictment cannot complain of its failure to instruct on lower grades of the crime." In the opinion in that case the court said: "The request, in this case, was expressly and voluntarily made, doubtless on account of some supposed advantage to be gained thereby. Defendant waived the right, and cannot now be heard to complain." The defense in the case at bar was accidental homicide and doubtless in objecting to an instruction on any grade of crime lower than murder in the first degree, the defendant considered that if the submission was so restricted he was enhancing his chances of an acquittal. But whatever may have been his purpose, the record shows that he did object to an instruction on manslaughter, and as Howell v. Sherwood. section 5115, Revised Statutes 1909, forbids that we should reverse a judgment "for any error committed at the instance or in favor of the defendant," there is no escape from the conclusion that the defendant is not entitled to a new trial for the failure of the court to give an instruction to which he objected at the time. V. Complaint is made by appellant that the prosecuting attorney, in his closing argument to the jury, was guilty of improper conduct which amounted to prejudicial error. We have examined the remarks complained of, together with the objections made thereto, and find that in each instance when an improper remark was made the court sustained the objection, admonished counsel and instructed the jury not to consider such remark. Considering the nature of the remarks and the action taken by the court we are of the opinion that the conduct of the prosecuting attorney did not constitute prejudicial error, and that there is no merit in this contention. No prejudicial error appearing in the record, the judgment is affirmed. Ferriss, P. J., and Brown, J., concur. H. E. HOWELL, JOHN A. PATTERSON, ORIN PATTERSON and B. S. EDMONSON THOMAS A. SHERWOOD, Appellant. In Banc, May 20, 1912. V. 1. EJECTMENT: Common Source of Title: Doubtful Description in Prior Deeds. If both plaintiff and defendant in ejectment claim through a common source of title, uncertainties in the description of land in prior deeds, such as whether the sign " after 41 in the description of "North 41 east 88 poles" was really and therefore meant degrees instead of seconds, are out of the case, and immaterial. 242 Sup.-33 |