State v. Pohl

1. Information: sufficiency. An information in ease of a felony is not required to be based upon tbe knowledge, information and belief of the prosecuting attorney or of any other person, nor to be supported by the affidavit of any person, if it is filed by the prosecuting attorney in his official capacity. 2. Instruction on Self-Defense. Even though the prosecuting witness may have had a knife in his hand and have been walking toward defendant when he was assaulted, yet if by defendant’s own evidence he was the aggressor and there is nothing tending to show that the other was about to assault him or do him some bodily harm, the defendant is not entitled to an instruction on the subject of self-defense. 3. ’ Instruction: erroneous: harmless, error. Defendant can not complain of an instruction on the subject of self-defense where the error was in his own favor. The error in the instruction in this ease required less of defendant to justify the assault by-him than the law imposed on him. 4. -: self-serving ERROR. No litigant can complain of an instruction given at his own request, however erroneous.

Appeal from Maries Circuit Court — Now. Jas. E. 'Hasell, Judge. (1) The court erred in failing to instruct the jury upon all the questions of law arising in the case, which was necessary for their information in giving their verdict. Laws 1901, p. 140, provides: “Whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and such a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict and granting a new trial.” State v. Cantlin, 118 Mo. 100; State v. Paxton, 126 Mo. 500; State v. Nelson, 132 Mo. 184. The Act of 1901 has changed entirely the meaning of the statute in so far as it relates to the points here in issue. It is not now necessary for the defendant to ask for instructions on all questions of law arising in the case, because the Legislature has said that it is the duty of the trial court to instruct “whether requested to or not.” It, therefore, not being necessary to ask for instructions, ( and none being asked, it would be impossible to follow ’ the rule heretofore laid down, and except to a ruling of the court which was not made. We contend that Under the statement of the defendant, and under all the evidence in this ease, disclosed by the record, the court should have given a plain, clear and concise instruction telling the jury that if they believed the theory of the defendant, then the striking of Baumgartner was not felonious, but justifiable, and that they must acquit the defendant on the ground of necessary self-defense. Sufficient and proper instructions on this theory are given in State v. Jones, 78 Mo. 278; State v. Hicks, 92 Mo. 431; State v. Music, 101 Mo. 260; State v. McDaniel, 94 Mo. 301; State v. Anderson, 86 Mo. 309 ; State v. Green, 66 Mo. 631; State v. Grant, 152 Mo. 57; State v. Smith, 125 Mo. 7; State v. Hudspeth, 159 Mo. 196; State v. Paxton, 126 Mo. 509; State v. Talmage, 107 Mo. 560. A defendant is entitled to an instruction on self-defense though his own testimony is the only evidence in support of it. State v. Fredericks, 136 Mo. 51; State v. Music, 101 Mo. 260. (2) The court did not correctly declare the law in the instructions given. They entirely deprive the defendant of the right of self-defense if he brought on the difficulty, or voluntarily entered into the same, without regard to his intention or design in so doing. Instruction 9 requires the jury to believe before they acquit the defendant, “that Enoch Baumgartner brought on the difficulty.” Instruction 10 requires the jury to believe before they acquit the defendant that the defendant £ ‘ did not himself voluntarily enter into the difficulty.” These expressions are not qualified in any way, and it is now the well-settled law in this State that a person may bring on a difficulty, or voluntarily enter into the same, without a felonious design, and still be not deprived of his right of self-defense. State v. Partlow, 90 Mo. 608; State v. Berkley, 92 Mo. 41; State v. Hickman, 95 Mo. 322; State v. Vaughn, 141 Mo. 514; State v. Rapp, 142 Mo. 443. (3) The motion in arrest should have been sustained, because the information was not sufficient to require the defendant to be placed on trial. The information was not sworn to or verified by either the prosecuting attorney or anyone else; neither does the information show that it was based on the affidavit of anyone, or that such an affidavit was filed, hut on the contrary it states that: “John W. Terrell, prosecuting attorney within and for the county of Maries, in the State of Missouri, informs the court,” etc. Thus the information shows on its face that it is based either on the knowledge, or the information and belief, of the ■said prosecuting attorney, and we can not consider any •affidavit in the case that may have been filed separately with the circuit clerk, because the prosecuting attorney has a right to ignore such an affidavit, or complaint, and file an information on his own knowledge, or information and belief, and such appears to be the intention of the prosecuting attorney in the case at bar. That is the only construction we can put on the words used in the information itself, and wé can not go back of that to look for an affidavit, or complaint, or to inquire into where or how he obtained his information. State v. Fagan, 70 Mo. App. 406. It appearing on the face of the information in the case at bar that it was based on the knowledge, or the information and belief, of the prosecuting attorney, and said information being filed in a court of record, then it is absolutely necessary that it should be verified, and in the absence of such verification it is fatally defective. R. S. 1899', sec. 2477; State v. 0 ’Connor, 58 Mo. App. 457; State v. Truett, 61 Mo. App. 156; State v. Sayman, 61 Mo. App. 244;-State v. Bragg, 63 Mo. App. 22. An information filed in a court of record wherein the charge is a felony, need not be founded upon the affidavit of any person or of the prosecuting officer. It has been held by this court that under the laws of this State, as they now exist and existed at the time this information was filed, the rules of common law would govern the sufficiency of the information. At common law the information need not be under oath, but is sufficient if it was signed by the attorney-general, solicitor-general, or prosecuting attorney, and is sufficient in form. Blackstone, book 4, pp. 308, 309, 310; Chitty’s Criminal Law, pp. 845, 846; Bishop’s Criminal Procedure, sec. 144; State v. Kelm, 79 Mo. 515; State v. Bris-coe, 80 Mo. 643; State v. Kyle, 166 Mo. 287.