27 S.W. 1109 (Mo. 1894), State v. Fischer

Citation:27 S.W. 1109, 124 Mo. 460
Opinion Judge:Burgess, J.
Party Name:The State v. Fischer, Appellant
Attorney:R. F. Walker, Attorney General, for the state.
Case Date:November 05, 1894
Court:Supreme Court of Missouri
 
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27 S.W. 1109 (Mo. 1894)

124 Mo. 460

The State

v.

Fischer, Appellant

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Pemiscot Circuit Court. -- Hon. H. C. Riley, Judge.

Reversed and remanded.

R. F. Walker, Attorney General, for the state.

(1) This court will not pass upon the sufficiency of the testimony except where there is a total failure of proof, and where it is evident the jury were actuated by prejudice or passion. No such conclusion can be reached by reading the record in this case. State v. Young, 24 S.W. 1038; State v. Banks, 118 Mo. 117; State v. Hermann, 117 Mo. 629; State v. Moxley, 115 Mo. 644; State v. Burd, 115 Mo. 405; State v. Richardson, 117 Mo. 586. (2) The instructions fully and correctly declare the law, with exceeding liberality to the defendant, present every feature suggested by the indictment and the testimony. State v. Wheeler, 108 Mo. 662; State v. McCaskey, 104 Mo. 647; State v. Brandenburg, 118 Mo. 181; State v. Patterson, 88 Mo. 88; State v. Hill, 91 Mo. 429. (3) No error was committed by the trial court in overruling defendant's motion for new trial, because of the discovery of new testimony. No diligence is shown. Nor does the defendant make an affidavit of any character in support of the allegation. State v. Campbell, 115 Mo. 391; State v. Welsor, 117 Mo. 570; Hall v. State, 26 S.W. 72. (4) The remarks of counsel for the state could not have prejudiced the defendant. It was a mere conclusion of the attorney; nothing more. It certainly did not constitute reversible error. State v. Young, 105 Mo. 634.

OPINION

[124 Mo. 461] Burgess, J.

From a conviction in the circuit court of Pemiscot county for seducing one Ida B. Phillips, an unmarried female of good repute, under promise of marriage, defendant appeals. His punishment was assessed at two years' imprisonment in the penitentiary. No brief has been filed on the part of defendant.

Ida B. Phillips, at the time of the alleged seduction, October, 1892, was but seventeen years of age. During that year defendant was employed as a farm laborer, jointly by one Lewis and the father of Ida, and during the cropping season he and the girl worked together in the fields upon farms of both Lewis

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and Phillips. During the spring defendant began paying unusual attention to Ida and proposed to marry her as soon as she arrived at...

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