21 Mo.App. 595 (Mo.App. 1886), State v. Smith

Citation:21 Mo.App. 595
Opinion Judge:HALL, J.
Party Name:STATE OF MISSOURI, Respondent, v. L. SMITH, Appellant.
Attorney:MOORE & WILLIAMS for the appellant. No brief on file for the respondent.
Case Date:April 19, 1886
Court:Court of Appeals of Missouri
 
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Page 595

21 Mo.App. 595 (Mo.App. 1886)

STATE OF MISSOURI, Respondent,

v.

L. SMITH, Appellant.

Court of Appeals of Missouri, Kansas City.

April 19, 1886

APPEAL from Moniteau Circuit Court, HON. E. L. EDWARDS, Judge.

Reversed and remanded.

Statement of case by the court.

The defendant was indicted for obstructing a public road. The court for the plaintiff gave, among others, the following instruction:

" The court instructs the jury that they must believe from the evidence, beyond a reasonable doubt, that defendant is guilty, as charged in the indictment, before finding a verdict against him, and that such reasonable doubt, means a reasonable, substantial, real doubt touching the defendant's guilt, and not a mere guess, conjecture or mere possibility that defendant may be innocent."

MOORE & WILLIAMS for the appellant.

I. The court erred in the trial of the case. (1) The witnesses whose names were not endorsed on the indictment should not have been permitted to testify. (2) The conversation testified to should have been excluded. (3) The defendant should have been permitted to show the sources of his information with reference to the location of the road. The animus of defendant in what he did was material, for if it was not done wilfully or knowingly (if, in fact, the obstruction of the road was made), it was no offence.

II. The court erred in the law. The instructions given for the state are very objectionable. The first is incomplete in leaving out the words " wilfully and knowingly; " the second, in submitting the question of usage and prescription, which " cuts no figure." The location of the road was required to be shown by the...

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