17 S.W. 300 (Mo. 1891), State v. Ihrig

Citation:17 S.W. 300, 106 Mo. 267
Opinion Judge:Macfarlane, J.
Party Name:The State v. Ihrig, Appellant
Attorney:J. D. Arbee, W. O. Mead and J. D. Irvin for appellant. John M. Wood, Attorney General, for the State.
Case Date:October 12, 1891
Court:Supreme Court of Missouri

Page 300

17 S.W. 300 (Mo. 1891)

106 Mo. 267

The State


Ihrig, Appellant

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Hickory Circuit Court. -- Hon. W. I. Wallace, Judge.


J. D. Arbee, W. O. Mead and J. D. Irvin for appellant.

(1) The indictment in this case was attempted to be drawn under section 3479, Revised Statutes of 1889, but it fails to state the offense provided for by that section, and defendant's objection to the introduction of any testimony should have been sustained. There is a material difference between the case at bar and State v. White, 76 Mo. 96. (2) The court erred in giving instructions asked by the state. The jury should have been instructed to acquit the defendant, for the reason that there was no testimony whatever of any effort or purpose on the part of the defendant to conceal the birth of a child, nor did the state prove that a male child was born, as alleged in the indictment. (3) The court had no right, by an instruction, to comment upon the testimony of the defendant in her own behalf, or to call the attention of the jury specifically to it and the weight to be given it, as in this case; but, on the contrary, the jury should be left free and without any intimation from the court as to the weight to be given her testimony, as in the case of any other witness. State v. Anderson, 86 Mo. 309; State v. Young, 99 Mo. 666. (4) The court erred in overruling the defendant's motion for a new trial.

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

(1) The indictment was sufficient, and the instructions proper. State v. White, 76 Mo. 96. (2) It does not appear from the record here that it contains all of the instructions, but it does appear that other instructions were given on the part of the appellant, and the presumption will be indulged that they were proper, and applied to the whole case. State v. Tucker, 84 Mo. 22; Birney v. Sharp, 78 Mo. 73; Greenbaum v. Millsaps, 77 Mo. 474; State v. Anderson, 86 Mo. 309; State v. Burk, 89 Mo. 635. (3) One of the grounds stated in the motion for a new trial is that juror John Winkle had prejudged the case; upon the evidence presented on both sides, the court found that the charge against the juror was not sustained, and this finding, being supported by the evidence, which it was the duty of the trial judge to weigh and consider, will not be disturbed in the...

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