#### STATE of Missouri, Respondent, v. Azzie Bee COOK, Appellant.

No. 44682.

Supreme Court of Missouri. Division No. 2.

Oct. 10, 1955.

lock, Donald S. Siegel, St. Louis, 'lant.

. Dalton, Atty. Gen., John S. Phil- :. Atty. Gen., for respondent.

EACER, Presiding Judge.

efendant was charged .with assault ,nt to kill with malice aforethought; 'onvictions of assault with intent to of exhibiting a deadly weapon were arged in order to invoke Section 556.-SMo 1949, V.A.M.S., the so-called tual Criminal Act. Defendant was icted of the principal charge and pun-ent assessed at twenty-seven years in penitentiary, but was found “not guilty” any prior conviction. The case has been re on a previous appeal, reported at 262 ¡í>.W.2d 866. That appeal involved solely Un instruction upon a presumption of intent pnd malice, and a similar instruction is again involved. Under our views, as now expressed, it will not be necessary to outline the evidence in detail.

Defendant and his wife were apparently estranged, but he occasionally visited at the rooming house she operated at 5886 Page in St. Louis, and claimed to have a substantial investment in the place. Olive Squires, the victim of the assault now charged, was rooming there. On the day in question, December 13, 1951, at about 5:15 P.M., defendant appeared at the front door with a 20-gauge double-barreled shotgun, and *534knocked; his wife openfecS43$¿¿dS.|p>' made some outcry and started^ta^trá^íj-;'', de--fendant fired a shot, perháff^ft-fer.sand perhaps to scare her, but ap^jenffy'ft .hit the jamb of the door thrtíü^^'vASAi'she was leaving. Olive Squires8<^^^f$-.4een sitting at the telephone in got up somewhat hurriedly leave” through a door; she*' defendant shouted something w’ not understand and promptly fi^ her which hit her in the left occurred within a minute or tw«¿«fter¡1⁄83⁄8. fendant appeared. She proceeSftfe 1⁄81⁄8 house next door. The evidencZ»^^! show what became of Mrs. Cool^Pdid she testify at either trial; apparent!^ she was not hit. The police soon came,'found defendant and the gun, and arrest*®1"! finding also two spent shells on the two live shells in the gun. Defendant^ fied at the present trial that he was j trying to scare his wife when he shot5 that he did not even see Olive Squi: that the gun went off accidentally the time, but he heard someone “holler.” 7⁄8 defendant and Olive insisted the; never had any disputes or trouble. > was in the hospital for more than W [ months, but 'apparently recovered;" 1⁄83⁄43⁄8 diagnosis on the hospital record “Gunshot wound, left buttocks, with foration of rectum. * * * explórateos laparodomy.” There was evidence of tain oral admissions of defendant to 3⁄81⁄81⁄8 police, including a statement that he askedfo Olive Squires if she was going to call th@rf police, and that he had pointed the gun her and fired a shot at her as she ran, be3⁄4 cause she had caused him “a lot of trouble,” "> and she was going to call the police. Such other facts as may be material will be referred to later.

The trial court gave the following instruction (Number III) : “The Court instructs the jury that he who willfully, that is, intentionally, uses upon another at some vital part, a deadly weapon,.such as a shotgun loaded with gunpowder and leaden balls, must .in the absence of qualifying facts be presumed to know -that the effect is likely to be death, and knowing this must be presumed to intend death, which is the ' probable and ordinary consequence of such an act; and if such deadly weapon is used without just cause or provacation, he must he presumed to do it wickedly or from a bad heart.”

Assignments of error have been *'f0? UUJ-*wlLllm UJCr couueumac t by 1⁄85 maj0nty °f the C0Urt’ aS ^ere exPr«sed; it not only instructs upon a,Presumption of intent to cause death, but 3⁄8° upon a presumption of malice, as the '*4^ractlon there did. And we note further directed at this instruction in both the motion for new trial and in appellant’s brief. The verbiage of the instruction is somewhat different from the one disapproved in our previous opinion in this case, but it comes within the condemnation 7⁄85⁄8‡ it is wholly in the abstract. A majority ofj^Jie court held there that where the jury h^Jiefore it a “full, eye-witness account of t^-jf^cts and circumstances,” there was no «fjfttjgrffor any such presumption or for any Í4gtri£cti°n upon such a presumption. We ^jnq^ see any particular virtue in the use ^t-íferfwords “in the absence of qualifying 3⁄83⁄43⁄8” ancb 1⁄8 any event, they are insufficient justify the instruction under our last pí@f ioús rulings. At the second trial there eye-witness testimony not only from °llve Sqmres but also from tlle defendant were the °nly witnesses to the. shootjnS. except Mrs. Cook, whose where-not apPear: Under these «re-fail to see any legitimate reason of the present instruction at the 33⁄87⁄85⁄811⁄85⁄81. We hold that in giving it the YCOmbnitted reversible error. For a f^ssiibsiim of the subject and the last rmlng'-<£tfnthis court en banc, see the case ofotStatslJVteMartin, Mo., 260 S.W.2d 536, w'SiArista'to'mplete and final authority for-holding the present instruction to be prej-udicially erroneous. The argument that the courts have approved similar instruc-tioSá3⁄8:5⁄81⁄87⁄8•ié{is7⁄8ases is wholly unavailing.. The il^l^WBSéTof the present instruction, invél^lb^ISffelffically a presumption of malr&rf^fíSS rtfQrlher than the instruction disapproved in3%% Martin case. We do-not, by any means,, intend to say -that the jury may S0r'8l Instructed on its right to draw *PSi-SMiaitbttPHhferences*from the evidence, 1⁄83⁄811⁄81⁄8 entirely -different things *535We do hold that in the presence of the actual facts, as testified to here by eye-witnesses, it was improper to instruct the jury concerning a presumption of intent and malice. This rule is actually no different from that in civil cases to the effect that, in the face of substantial evidence of the actual facts, a presumption of fact disappears and has no evidentiary value as such, although the facts from which the presumption arose remain in the case. State v. Martin, Mo., 260 S.W.2d 536, 541; Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 140; State ex rel. Bowdon v. Allen, Banc, 337 Mo. 260, 85 S.W.2d 63; State ex rel. Waters v. Hostetter, Banc, 344 Mo. 443, 126 S.W.2d 1164.

Appellant complains also of various statements made by counsel for the state in argument; it will not be necessary to consider all of these for some were not properly raised at the trial or in the motion for new trial. The statement of the assistant state’s attorney during the argument that “he killed one man already” was highly prejudicial and was entirely outside the evidence. There was evidence that defendant had, on a previous occasion, been charged with manslaughter and had on that occasion entered a plea of guilty to a charge of exhibiting a dangerous and deadly weapon. There was no- conviction of manslaughter or plea of guilty to manslaughter. The statement was wholly unwarranted. Defendant’s counsel objected, asked that counsel be rebuked and moved for a mistrial. The trial court said, “Proceed.” The failure of the q.ourt to take some appropriate action was error. On this no authority really need be cited, but see: State v. Flores, 332 Mo. 74, 55 S.W.2d 953; State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725; State v. Wellman, 253 Mo. 302, 161 S.W. 795; State v. Tiedt Banc, 357. Mo. 115, 206 S.W.2d 524*.*

Two prior convictions' 3⁄85⁄83⁄8 : alleged in the amended information and evidence thereof was produced; convictions of four .other miscellaneous offenses were ’admitted. by defendant on cross-examination. The argument of the state’s attorney about *six*prior convictions was not confined strictly to the question of credibility or even to the question of additional punishment, but,rather seems to have been directed at establishing .the defendant’s guilt. This point is argued here by counsel for defendant, but we do riot think it was sufficiently preserved in the motion for new trial under the requirements of Rule 27.20, 42 V.A. M.5.. We merely mention it in view of another trial.

Defendant also complains of statements .of the assistant state’s attorney that Olive Squi'r^s was “entitled to justice * * * she is entitled to something, too. She is the one that got shot. She didn’t ask to get shot.” This line of argument was objected to when first made and the objection has been preserved in the motion for new trial. The argument tended to distort the real issues and drag in a personal issue between Olive Squires and defendant. It is not necessary to decide here whether this alone would constitute reversible error. The argument should not occur again.

The last point made is that Instruction No. I (the principal instruction on assault with intent to kill with malice aforethought) was broader than the evidence, in that it referred to the giving to Olive Squires wounds “upon the head and body,” whereas no evidence showed that she was wounded in the head. The argument is that the reference to wounds in the *head*was erroneously prejudicial as indicating-more readily an intent to kill than would mere reference to wounds in nonvital parts. The argument is somewhat tenuous, but the instruction could well be confusing; while we cannot say that the wounds here were not in a “vital part,” we suggest that at the next trial all instructions should follow strictly the evidence adduced. -

For the errors herein found, the judgment is reversed and the cause remanded.

All concur.