17 S.W. 303 (Mo. 1891), State v. Daugherty

Citation:17 S.W. 303, 106 Mo. 182
Opinion Judge:Thomas, J.
Party Name:The State v. Daugherty, Appellant
Attorney:M. B. Clarke for appellant. John M. Wood, Attorney General, for the State.
Case Date:October 12, 1891
Court:Supreme Court of Missouri
 
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Page 303

17 S.W. 303 (Mo. 1891)

106 Mo. 182

The State

v.

Daugherty, Appellant

Supreme Court of Missouri, Second Division

October 12, 1891

Appeal from Ozark Circuit Court. -- Hon. J. F. Hale, Judge.

Affirmed.

M. B. Clarke for appellant.

(1) There was no evidence, whatever, showing that the offense was committed in Ozark county. State v. Hughes, 82 Mo. 86; State v. McKay, 20 Mo.App. 149. (2) The proof shows that the offense was committed in 1882; the indictment alleges that it was committed in 1883; while the indictment was not found till the October term, 1888, more than three years after the commission of the offense charged, and, in order to avoid the statute of limitations, set out that other indictments, which had been quashed or set aside, have been pending during a part of that time. In order to prove this allegation, the state was permitted, over the objection of the defendant, to introduce the oral testimony of James L. Davis, the former prosecuting attorney of Ozark county. This was error. The returning into court of such former indictments, and the action of the court in quashing, or otherwise disposing of, the same, were matters of record, and could only be proven by the record itself. Roscoe's Crim. Ev. [8 Ed.] p. 1; Wharton's Crim. Ev. [8 Ed.] p. 129, bottom; Graham v. O'Fallon, 3 Mo. 509; State v. Edwards, 19 Mo. 674; Greenleaf on Ev. [13 Ed.] p. 107. (3) The court committed prejudicial error in orally instructing the jury when they came into court, and said they could not agree, "that if it was about the punishment they could not agree, to return a verdict and the court would fix that matter." The instruction did not properly declare the law. 7 Mo. 502. The court had no right to instruct the jury except in writing. The jury might very well have inferred, from the language of the court, the defendant was guilty, and that the only question upon which the jury had any reason to deliberate was the amount of punishment to be inflicted.

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

(1) The indictment properly charges the offense under section 1374, Revised Statutes, 1879, and sets forth the facts which avoided the barring by the statutes of limitation. State v. Meyers, 68 Mo. 266. (2) The offense was not barred. First. Because there was an indictment pending. R. S. 1879, sec. 1707. Second. Because the testimony shows that defendant had fled from justice. R. S...

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