20 S.W. 27 (Mo. 1892), State v. Woolard
|Citation:||20 S.W. 27, 111 Mo. 248|
|Opinion Judge:||Gantt, P. J.|
|Party Name:||The State v. Woolard, Appellant|
|Attorney:||Lentz & Standard for appellant. John M. Wood, Attorney General, for the State.|
|Case Date:||July 01, 1892|
|Court:||Supreme Court of Missouri|
Appeal from Butler Circuit Court. -- Hon. John G. Wear, Judge.
Reversed and remanded.
(1) There is not sufficient evidence in this record to warrant a conviction on any of the grades of homicide, and the judgment should be reversed and the defendant discharged. (2) The defendant and Brown, being both charged as principals for the commission of the same offense, should have been joined in one indictment if indicted at all. Revised Statutes, 1889, sec. 4105. (3) The witness, Alf. Brown, if he is to be believed at all, is shown by his own as well as other testimony to be a particeps criminis in the commission of the crime, testifying under promise of release from imprisonment and dismissal of prosecution against him. And the jury should have been instructed as to the credit to be given to his testimony under such circumstances. And for failure to do so the cause should be reversed. Wharton's Criminal Evidence [8 Ed.] secs. 440, 441, 442; 1 Greenleaf on Evidence [14 Ed.] secs. 380, 381; 2 Russell on Crimes [7 Am. Ed.] side pp. 960-4; State v. Miller, 100 Mo. 606; State v. Chiagk, 92 Mo. 413; State v. Reavis, 71 Mo. 419; State v. Jones, 64 Mo. 394; Black's Law Dictionary, p. 16; 1 Russell on Crimes [7 Ed.] sec. 26; 1 Bishop on Criminal Procedure [3 Ed.] secs. 1159, 1169; Wharton's Criminal Evidence [8 Ed.] sec. 440. (4) The second and third instructions given for the state are not the law, are not supported by the facts proven in this case, are misleading, and tend only to mislead and confuse the jury, and are manifestly prejudicial to the substantial rights of the defendant. Wharton's Criminal Evidence, sec. 333, and cases cited; State v. Howell, 100 Mo. 629; State v. Lewis, 69 Mo. 92; Bishop on Criminal Procedure, secs. 1061-1068. (5) The instructions, numbered 1, 2, 5, 6 and 7, as asked by the defendant and refused by the court, properly declared the law as applicable to this case, and the refusal to give these instructions was to disregard the right of this defendant to a fair and impartial trial according to the law of the land. 1 Bishop on Criminal Procedure [3 Ed.] secs. 1076-7; State v. Hill, 65 Mo. 87; State v. Carlyle, 57 Mo. 107; Clare v. People, S.Ct. Colo. (6) The fourth instruction asked by the defendant and refused by the court was not broad enough, but was correct as far as it went; it was the duty of the court to give correct instructions covering all the law arising on the case. The refusal of the court to instruct on this subject is contrary to all authority, either judicial or textual. Wharton's Criminal Evidence, secs. 440, 441, 442; 1 Greenleaf on Evidence [14 Ed.] secs. 380-1; 2 Russell on Crimes [7 Am. Ed.] side pp. 960-2; State v. Miller, 100 Mo. 606; State v. Chiagk, 92 Mo. 413; State v. Reavis, 71 Mo. 419; State v. Jones, 64 Mo. 394.
(1) The evidence in this case was not wholly circumstantial. There was an abundance of evidence to take the case to the jury, and this court will not set aside the finding of a jury when there is any evidence to support the verdict. State v. Jackson, 95 Mo. 624. (2) The evidence of Brown was admissible...
To continue readingFREE SIGN UP