State v. Young

• Decision Date: 19 May 1891
• Citation: 105 Mo. 634,16 S.W. 408
• Parties: STATE v. YOUNG.
• Court: Missouri Supreme Court

16 S.W. 408

105 Mo. 634

STATE v. YOUNG.

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

ACCUSED AS WITNESS — CREDIBILITY.

1. Under Rev. St. Mo. 1889, § 4218, providing that the fact that the accused is the party on trial "may" be shown for the purpose of affecting his credibility and that of his wife, it is not error to charge that the jury "should" consider that fact in determining the weight to be given to their testimony.

2. An instruction that a reasonable doubt must be a "substantial, well-founded doubt," while not approved, does not require a reversal.

3. It is to be presumed that the jury understand that each one of them must be convinced of the guilt of the accused, and it is not error to refuse a charge that the jury cannot convict if any one of them has a reasonable doubt.

4. Parol evidence of a statement made by the accused is not rendered incompetent by the fact that it was afterwards repeated by him, and reduced to writing.

5. In addressing counsel in regard to its rulings, it is not prejudicial error for the court to say: "If there is any error committed, there is a higher court."

6. Though the verdict might well have been for a lower offense than murder in the first degree, and the instructions might have been more favorable to the accused, and though the special counsel for the state exceeded the bounds of propriety in his argument, a second conviction will not be set aside.

Appeal from La Fayette criminal court; JOHN E. RYLAND, Judge.

John S. Blackwell, for appellant. The Attorney General, for the State.

GANTT, J.

The defendant was indicted in the La Fayette criminal court March term, 1888, for murder in the first degree, for the alleged stabbing and killing of one Stephen Ferguson, at Corder, La Fayette county, Mo., on the night of December 10, 1887. He was tried at the March term, 1889, convicted of murder in the first degree, and sentenced to be hung. From that conviction an appeal was prosecuted to this court, and upon a hearing the judgment was reversed, and the cause remanded. State v. Young, 99 Mo. 666, 12 S. W. Rep. 879. At the adjourned March term, 1890, of the criminal court of La Fayette county, defendant was again tried on the said indictment, and was again convicted of murder in the first degree. From this second conviction and sentence the present appeal is taken. The evidence is substantially the same as in the first trial. The learned counsel for the defendant urges that the trial court committed error in instructing the jury that the defendant could be convicted of murder in the first degree under the evidence. We think it was the province of the jury to fix the grade of the offense. They alone could say that defendant stabbed the deceased, and when they found that fact we think there was evidence from which they could find that the killing was willful, deliberate, and premeditated, and of malice aforethought. Two juries have found against defendant on these same facts, and when there is evidence sufficient to authorize the verdict, and the jury are properly instructed, we think it is our duty to affirm the sentence. The learned counsel renews his attack upon the instructions numbered 16 and 17, given by the trial court. They are the same instructions that were discussed and condemned by Judge SHERWOOD in the fourth paragraph of his opinion, when this cause was here before, but, as stated by him, no other member of the court concurred in that paragraph. The propriety of giving such an instruction as this was fully considered in State v. Cook, 84 Mo. 40; the opinion of the majority of the court by Hon. Alexander MARTIN, Commissioner, approved the instruction, and the opinion of the minority, by Judge DE ARMOND, Commissioner, condemned it. Cogent and plausible as the separate opinions of Judge SHERWOOD in this case, and of Judge DE ARMOND in the Cook Case, are, we think the rule, as announced by the majority, ought to be regarded as settled; and while we regard it as salutary to follow decisions when they have been fully considered and agreed upon, and might well content ourselves with affirming these instructions on the authority of these two decisions, yet we are of opinion that Judge MARTIN in State v. Cook answered the objections to these instructions, and sustained them upon principle. It was competent for the state, when it removed the common law disability of a defendant to testify in his own behalf, to restrict this right, and, in our opinion, this was the intention of the legislature when it provided that "any such fact [viz., the fact that he was the defendant on trial] may be shown for the purpose of affecting the credibility of the witness." It seems clear to us that the legislature did not intend to place the defendant on the plane of a disinterested witness, against whom there was no charge. While the defendant may testify, still the consideration of self-interest, the motive to preserve himself, is so great that no thoughtful person would think of attaching...