3 S.W. 868 (Mo. 1887), State v. Johnson

Citation:3 S.W. 868, 91 Mo. 439
Opinion Judge:Norton, C. J.
Party Name:The State, Appellant, v. Johnson
Attorney:B. G. Boone, Attorney General, for the state. C. P. & J. D. Johnson and C. C. Simmons for respondent.
Case Date:March 21, 1887
Court:Supreme Court of Missouri

Page 868

3 S.W. 868 (Mo. 1887)

91 Mo. 439

The State, Appellant,



Supreme Court of Missouri

March 21, 1887

October, 1886

Appeal from St. Louis Court of Appeals.


B. G. Boone, Attorney General, for the state.

(1) A general instruction as to reasonable doubt is applicable to all the evidence. It is not necessary to give a special instruction as to reasonable doubt following an instruction for alibi. Evidence of alibi is only ordinary evidence in rebuttal, and it is to be treated, in instructions, as other similar evidence. State v. Rockett, 87 Mo. 666; State v. Jennings, 81 Mo. 190; 1 Bish. Crim. Proc. [3 Ed.] sec. 1092. In the case at bar, the instruction as to reasonable doubt covered the whole case, and the instruction as to an alibi was as full, fair, and complete, as the evidence justified, or the law warranted. The case is parallel in every material particular with the Rockett case, supra. The case of State v. Lewis, 69 Mo. 92, does not apply here, because, in that case, no instruction on alibi was given. The court of appeals bases its reversal on the alleged error in the instructions as to alibi. That there is error in this reversal is evident from the authorities above cited. (2) The evidence of the medical experts in regard to the probable results from an outrage of a girl such as the one named, by a man such as defendant, did not justify an instruction for an assault with intent to commit a rape. The evidence as to the commission of the offence was clear and conclusive, and the instructions properly declared the law applicable to the case under the evidence. Under this state of facts, following the repeated rulings of this court, the verdict of the trial court should not be disturbed on account of its being, as alleged by respondent, against the weight of the evidence. State v. Warner, 74 Mo. 83; State v. Baber, 74 Mo. 292; Anderson v. Griffith, 86 Mo. 549.

C. P. & J. D. Johnson and C. C. Simmons for respondent.

(1) When, in a criminal case, the only real and substantial defence relied on is an alibi, the defendant ought to be acquitted, if the evidence raises a reasonable doubt in the minds of the jury as to whether he was present at the doing of the act charged against him as a crime, and the jury should be so instructed. The jury were directed to this defence in language which would be likely to convey to their minds the idea that it was a substantive affirmative defence, which must be made out by a preponderance of evidence, an error not cured by the giving of an...

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