Effective - 01 Oct 1984
546.070. Order of trial — instructions, requirements. — The jury being impaneled and sworn, the trial may proceed in the following order:
(1) The prosecuting attorney must state the case and offer the evidence in support of the prosecution;
(2) The defendant or his counsel may then state his defense and offer evidence in support thereof;
(3) The parties may then respectively offer rebutting testimony only, unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original case;
(4) In every trial for a criminal offense the court shall instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving the verdict, which instructions shall include a definition of the term reasonable doubt;
(5) Unless the case be submitted without argument, the counsel for the prosecution shall make the opening argument, the counsel for the defendant shall follow, and the counsel for the prosecution shall conclude the argument.
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(RSMo 1939 § 4070, A.L. 1983 S.B. 276, A.L. 1984 S.B. 448 § A)
Prior revisions: 1929 § 3681; 1919 § 4025; 1909 § 5231
Effective 10-01-84
(1952) In murder case evidence showed defendant without provocation or forewarning "bumped into" victim and as he (victim) turned around defendant shot him. Defendant claimed that because of illness or beating or intoxication he did not recall incident. Instruction on accidental shooting not required. State v. Slaten (Mo.), 252 S.W.2d 330.
(1953) Court could not review refusal of trial court to give instruction converse to state's main instruction where new trial witness and, on cross-examination for purpose of impeachment, case. State v. Dennis (Mo.), 242 S.W.2d 534.
(1953) Where defendant's evidence indicated that he committed robbery, not of his own volition, but because of a well-grounded fear of present, imminent and impending death or serious bodily injury at the hands of others, court was required to instruct jury on issue of duress. State v. St. Clair (Mo.), 262 S.W.2d 25.
(1954) Instruction reciting "insanity interposed by counsel of the defendant as an excuse for the charge" held erroneous as tending to disparage legal defense. State v. Johnson (Mo.), 267 S.W.2d 642.
(1954) Instruction in rape prosecution requiring defendant to prove insanity "to the reasonable satisfaction of the jury" held erroneous. State v. Johnson (Mo.), 267 S.W.2d 642.
(1954) Argument on behalf of state that defendant was contending that he could not be convicted because he had theretofore been adjudicated insane and confined to mental hospital and statement that if found insane he would be out in two months held erroneous. State v. Johnson (Mo.), 267 S.W.2d 642.
(1956) Reference to fact in opening statement that defendant, although being tried separately, had been charged jointly with others held not error. State v. Deppe (Mo.), 286 S.W.2d 776.
(1956) Mere nondirection in misdemeanor case is not error since § 546.070 does not apply. State v. Griffin (A.), 289 S.W.2d 455.
(1956) Where no objection is made to instructions at time they are given and read to the jury, court on appeal cannot review alleged errors therein. State v. Rush (Mo.), 286 S.W.2d 767; (1956) State v. Lawson (Mo.), 290 S.W.2d 84.
(1958) Argument by prosecuting attorney that in the event of acquittal or light sentence the defendant would commit another crime is improper but, where general objection was made, the trial court was within its discretion in not ordering a new trial. State v. Eckenfels (Mo.), 316 S.W.2d 532.
(1960) Where defendant formulates and asks an instruction that correctly states the law which is the converse of the state's principal instruction it is duty of the trial court to give the same. State v. McWilliams (Mo.), 331 S.W.2d 610.
(1960) In prosecution for operating vehicle in excess of speed limit it was prejudicial error for judge to permit interruption of defendant's testimony to allow two patrolmen to give testimony beyond their own testimony in chief, contrary to and in rebuttal of defendant's interrupted testimony. State v. Hunt (A.), 335 S.W.2d 506.
(1961) Where the defendant in his direct testimony and in cross-examination gave some evidence as to his prior convictions but did not offer any evidence to prove his good reputation it was error on the part of the court to give a good character instruction which stated that the law presumed that the person whose character is good is less likely to commit a crime than one whose character is not good. State v. Baldwin (Mo.), 349 S.W.2d 212.
(1961) Where the defendant offered an incorrect instruction on a collateral matter (in this case on the effect of impeaching testimony) the court is required to give a correct instruction. State v. Chaney (Mo.), 349 S.W.2d 238.
(1962) Trial court need not instruct on alibi unless requested to do so and stated objections by defendant's counsel immediately prior to giving of instructions that the court "failed to instruct the jury on all the law in the case involved, such as alibi instruction" did not constitute a request for alibi instruction. State v. Harris (Mo.), 356 S.W.2d 889.
(1962) Phrase in reasonable doubt instruction that "but a doubt to authorize an acquittal on that ground ought to be substantial doubt", upheld against contention that it lessened the burden of state's proof. State v. Sanders (Mo.), 358 S.W.2d 45.
(1962) As a general rule this section has no application to misdemeanor cases. State v. Katz Drug Company (A.), 362 S.W.2d 80.
(1962) Words "if proven to your satisfaction" in instruction to jury on consideration to be given to previous good character of defendant in prosecution for murder, though technically erroneous, were not manifestly prejudicial. State v. Demaree (Mo.), 362 S.W.2d 500.
(1962) Instruction on self-defense in prosecution for murder containing the words that if defendant had "reasonable cause to believe and did believe that it was necessary for him to shoot and kill" the deceased in order to protect himself held not reversible error against charges that it denied defendant the right to act upon appearances and restricted his right to single hypothesis that it was necessary "to kill" in order to protect himself. State v. Demaree (Mo.), 362 S.W.2d 500.
(1963) In prosecution for robbery in first degree it was proper, assuming it not to be mandatory, for the court to instruct that voluntary intoxication is no excuse for commission of crime, although intoxication was not raised by defendant as an excuse, since the record was replete with testimony concerning intoxication of defendant. State v. Sawyer (Mo.), 365 S.W.2d 487.
(1963) Burden of proof instruction using phrase "establishes his guilt to your satisfaction" in conjunction with phrases "beyond a reasonable doubt" and "to a moral certainty" held not to minimize defendant's rights or the presumption of his innocence. State v. Caffey (Mo.), 365 S.W.2d 607.
(1963) In prosecution for second degree murder where facts created issue of self-defense the court erred in failing to instruct thereon notwithstanding the state's verdict directing instruction required jury to find that defendant acted "with malice aforethought". State v. Austin (Mo.), 367 S.W.2d 485.
(1963) Where defendant adduced substantial evidence as to his good character he was entitled to the benefit of that evidence if the jury found from a preponderance of the evidence that he was of good character, and an instruction that jury was to consider good character of defendant if proven to its reasonable satisfaction was error. State v. Jackson (Mo.), 369 S.W.2d 199.
(1963) Where information charged defendant "on or about the 30th day of March, A.D. 1962", did certain acts in violation of city ordinance, and all of evidence submitted related to events occurring on March 29, 1962, verdict directing instruction which, through typographical error, required jury to find defendant guilty if they found she did the alleged acts "on or about the 29th day of May" was reversible error. Kansas City v. Martin (A.), 369 S.W.2d 602.
(1963) In robbery prosecution wherein testimony of accomplice constituted major part of state's evidence, court did not err in failing to give sua sponte an accomplice instruction since such instruction would have been purely cautionary and collateral to principal issue involved. State v. Garton (Mo.), 371 S.W.2d 283.
(1964) Judge's statement to jury after submission of cause and in answer to their question about sentence to be imposed, that jury should refer to instructions and the three forms of verdict given them and that court would have no objection to jury using form of verdict that did not refer to the prior conviction if they felt it appropriate was not the giving of an instruction within rule requiring instruction of jury in writing. State v. Baugh (Mo.), 382 S.W.2d 608.
(1964) Court did not err in refusing to give instruction requested by defendant to the effect that jury could not consider failure of the accused to take the stand nor draw any unfavorable inference therefrom. State v. Perkins (Mo.), 382 S.W.2d 701.
(1964) Where the defendant was charged in one information with burglary and stealing, court was required without request to instruct jury that they could convict of one offense and acquit of the other and as there was nothing in the record to show that defendant waived this right, failure to so instruct was reversible error. State v. Qualls (Mo.), 383 S.W.2d 547.
(1966) If there was substantial evidence to support the submission of the offense, the trial court is required to give an instruction on the offense whether requested or not. State v. Adams (Mo.), 406 S.W.2d 608.
(1967) Court's failure to instruct jury on issue of excusable homicide because of accident in homicide prosecution where defendant testified that gun went off accidentally was plain error affecting substantial rights, although not set forth as an assignment of error in motion for new trial. State v. Haygood (Mo.), 411 S.W.2d 230.
(1967) An instruction which purports to cover the whole case but which entirely ignores a defense supported by evidence is erroneous and constitutes reversible error. State v. Drane (Mo.), 416 S.W.2d 105.
(1971) For error to instruct on the subject of good character when such an instruction was requested by the defendant in prosecution for misdemeanor of keeping intoxicants on premises licensed for sale of nonintoxicating beer, the judgment was reversed and case remanded. State v. Russo (A.), 470 S.W.2d 164.
(1973) Where defendant assigned as error the trial court's failure to instruct the jury as to the legal effect to be given to the evidence concerning defendant's breath test for blood alcohol, it was not grounds for setting aside the verdict in this misdemeanor case, where jury was not misdirected or the court did not refuse to give proper instructions offered by the defendant. State v. Kramme (A.), 491 S.W.2d 24.
(1974) The term "whenever necessary" in subdivision (4) means that such an instruction is necessary only when there is substantial evidence tending to show the good character of the defendant. State v. Antwine (Mo.), 506 S.W.2d 397.
(1975) In prosecution for second degree murder, where defendant was convicted of manslaughter, circumstantial evidence including appellant's attempt to procure false testimony, his flight from scene, his destruction and attempted destruction of evidence, and his admission of having sought to remove suspicion from himself by falsely stating that victim committed suicide was sufficient to establish submissible case and instruction on manslaughter was properly given although there was no evidence of provocation by victim. State v. Stapleton (Mo.), 518 S.W.2d 292.
(1987) It was error to give instruction on reputation of defendant where defendant did not present any evidence at trial as to his general reputation for good character. State v. Stone 731 S.W.2d 466 (Mo.App.S.D.).