finding court’s “inquiry would be unduly slanted were [the court] to compare only those cases in which the death penalty has been imposed” and determining “as similar [t]hose cases in which both death and life imprisonment were submitted to the jury”
How later courts described this case
- finding court’s “inquiry would be unduly slanted were [the court] to compare only those cases in which the death penalty has been imposed” and determining “as similar [t]hose cases in which both death and life imprisonment were submitted to the jury”
- defendant sentenced to death for the slaying of a fellow inmate
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING
PER CURIAM.
Appellant in his motion for rehearing contends that the trial court erred in failing to instruct the jury on first degree murder as a lesser included offense. There was no objection at trial to the failure to so instruct the jury, and appellant did not raise the point in his motion for new trial. It is raised here for the first time in appellant’s reply brief, but it attempts to raise a new matter rather than reply to matters raised in the state’s brief. Such is impermissible. State v. Brown, 502 S.W.2d 295, 306 (Mo.1973), cert. denied, 416 U.S. 973 , 94 S.Ct. 1999 , 40 L.Ed.2d 562 (1974).
Appellant argues that we should review the point for plain error. Rule 29.-12(b). After careful consideration we conclude that there has been no “manifest injustice or miscarriage of justice,” id., that would necessitate reversal. The trial court instructed the jury on second degree murder and manslaughter, and the jury thus had the opportunity to convict appellant of a lesser offense. See Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980). Moreover, the evidence in this case would not support an instruction on first degree (felony) murder because none of the five enumerated felonies, § 565.003, RSMo 1978, was present. Due process therefore is not abridged. Hopper v. Evans, -U.S. -, 102 S.Ct. 2049 , 72 L.Ed.2d 367 (1982).
The motion for rehearing is overruled.