State v. Grimes

• Citation: 13 S.W. 956,101 Mo. 188
• Parties: The State v. Grimes, Appellant
• Decision Date: 16 June 1890
• Court: United States State Supreme Court of Missouri

13 S.W. 956

101 Mo. 188

The State v. Grimes, Appellant

Supreme Court of Missouri

June 16, 1890

Appeal from Butler Circuit Court. -- Hon. John G. Wear, Judge.

Affirmed.

J. C Sheppard and C. D. Yancey for appellant.

(1) The evidence offered by the state wholly failed to show that Lucas' Cow, that was found dead, was the same cow that witnesses think they saw defendant shoot. (2) The conflicting and doubtful character of the testimony, taken in connection with the omission of the court to properly instruct the jury should reverse this case, so that in a new trial the jury may be guided by proper instructions in arriving at its finding as to the guilt or the innocence of the defendant; for it is clearly the duty of the trial court to give necessary instructions, whether asked to do so or not. State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568. And when the state fails to instruct the jury it constitutes reversible error. State v. Banks, 73 Mo. 592.

John M. Wood, Attorney General, for the State.

(1) The instructions are not contained in the record and no error is assigned in the giving or refusal of instructions in the motion for a new trial, and the action of the court in this particular is not the subject of review by this court. State v. Burk, 89 Mo. 635. (2) There is no dispute but what the cow found dead was the Lucas cow. The testimony of the two witnesses, Mrs. Green and Hughey Green, alone fully justified the jury in finding defendant guilty. This court has repeatedly held that it will not disturb the verdict of the jury on the ground that it is against the weight of the evidence, unless it clearly appears that the jury acted from prejudice or passion. State v. Lowe, 93 Mo. 547; State v. Cook, 58 Mo. 548; State v. Musick, 71 Mo. 401; State v. Warner, 74 Mo. 38; State v. Hammond, 77 Mo. 158.

OPINION

Brace, J.

-- The defendant was indicted and convicted under section 1374, Revised Statutes, 1879, for maliciously killing a cow, the property of Dennie Lucas, and his punishment assessed at imprisonment in the county jail for six months and to pay a fine of fifty dollars. The bill of exceptions contains nothing but the evidence and the motions in arrest and for a new trial, and no exceptions were saved to any action of the court except the overruling of said motions.

The indictment is in good form; no error appears upon the face of the record proper, and the motion in arrest was properly overruled. No question arises on the record as to the action of the court in regard to instructions, as no exceptions were saved to its action in respect thereof, nor was any such action assigned as ground for new trial or preserved in the bill of exceptions. The only question in the case is, does the evidence support the verdict? It will only be necessary to set out the material evidence in chief of some of the state's witnesses to show that there was ample testimony to take the case to the jury; its general tenor and force was not varied by the cross-examination.

Dennie Lucas testified: "I owned a cow on the eighth of August last. This is the cow that was shot. She was a sort of sorrel color with a heart in her forehead; red and white spotted; pretty good-sized cow. The cow did not come up and I sent a boy to hunt her. I went, next morning, back of defendant Grimes' fence and the cow was there dead. I saw drops of blood on her hair. Her bag was cut through. The cow I found dead was the same cow I have described. This was August 11, 1886."

Robert N. Mabrey testified: "I live in Poplar Bluff. Know defendant. I knew him August 8, 1886. I saw him on that day the eighth day of August, 1886. This was Sunday morning that I saw him. I know Dennie Lucas. I did not know a cow that belonged to Lucas at this time. I saw defendant standing in an acre lot. I saw a cow in the lot. She was a...