State v. Kelly

• Decision Date: 28 October 1884
• Citation: 16 Mo.App. 213
• Parties: STATE OF MISSOURI, Respondent, v. JAMES KELLY, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 213

STATE OF MISSOURI, Respondent,

v.JAMES KELLY, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 28, 1884.

APPEAL from the St. Louis Criminal Court, VAN WAGONER, J.

Reversed and remanded.

MARTIN & FAUNTLEROY, for the appellant.

T. B. HARVEY, for the respondent.

THOMPSON, J., delivered the opinion of the court.

The defendant was indicted under section 1262 of the Revised Statues for an assault with intent to kill, and was convicted and sentenced to imprisonment for six months in the county jail.

1. We must reverse this judgment, because the charge of the court did not present the law to the jury in its application to all the hypotheses of fact presented by the evidence. By section 1655 of the Revised Statutes the defendant was entitled, if the jury should believe that the assault was not made with the intent to kill, to be acquitted of the felony, and convicted of a common assault under section 1265. But the court failed to instruct the jury that they were at liberty to do this. There was no evidence that the assault was made with a weapon which was necessarily deadly in its character; and though the prosecuting witness received a very severe blow, they might well have found, had they been instructed that they might, that there was no intent to kill. No instruction of this kind was requested; but it is settled law in this state that the court is bound, in a criminal case, to instruct as to all the degrees of the crime charged of which there is any evidence tending to prove the defendant guilty. The State v. Banks, 73 Mo. 592; The State v. Branstetter, 65 Mo. 149.

2. The only defence was an alibi, and the testimony of four witnesses tended to make this defence good. With reference to this defence the defendant asked the court to instruct the jury that “if, from the evidence in the case, they have a reasonable doubt whether the defendant was present at the time and place of the commission of the offence charged in the indictment they should find the defendant not guilty.” This instruction the court refused to give. This ruling calls up a question which has been once before the supreme court, and twice before this court. In The State v. Lewis (69 Mo. 92), the only defence, as here, was an alibi. The court was asked to give the following instruction: “The jury are instructed, if they have a reasonable doubt that the defendant committed the homicide alleged in the indictment, or was absent at the time said homicide was alleged to have been committed, they will find a verdict of acquittal.” This instruction the court refused to give, nor did the court in any other instruction call the attention of the jury to the defence of alibi, but in the instructions given language was used which had the effect of assuming that the prisoner was present; but the court, as here, gave the usual instruction on the doctrine of reasonable doubt as applicable to the whole case. It was held that it was error to refuse the instruction above set out; the supreme court taking the view that the instructions which were given upon the different degrees of homicide were calculated to mislead the jury, because they assumed that the defence of alibi was frivolous and unfounded. We understand the force of this decision to be: 1. That where the only defence is an alibi it is a sound proposition of law that the defendant ought to be acquitted if the evidence raises a reasonable doubt in the minds of the jury as to whether the prisoner was present at the doing of the act charged against him as a crime. On this proposition of law we have no doubt. The State v. Herndon, 46 Iowa, 23; Howard v. The State, 50 Ind. 190; Walker v. The State, 42 Texas 260; The State v. Emory, 12 Mo. App. 593. 2. That it is error for the court to refuse, upon request, so to instruct the jury, where the defence of alibi is not otherwise in the instructions brought to their attention. That was the understanding which we had of that decision when we decided the case of The State v. Emory ( supra); and the court having in that case directed the minds of the jury to the defence of alibi, and given them the proper instruction as to the doctrine of reasonable doubt in its application to the guilt or innocence of the defendant as it stood upon...