State v. Johnson

• Decision Date: 21 March 1887
• Citation: 3 S.W. 868,91 Mo. 439
• Parties: The State, Appellant, v. Johnson
• Court: Missouri Supreme Court

3 S.W. 868

91 Mo. 439

The State, Appellant, v. Johnson

Supreme Court of Missouri

March 21, 1887

October, 1886

Appeal from St. Louis Court of Appeals.

Reversed.

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 appropriate instruction as to the doctrine of reasonable doubt in its application to the whole case. The instruction referred to did not fully state the law, and, in the form it was given, was calculated to mislead the jury. State v. Lewis, 69 Mo. 92; Bish. Crim. Plead., sec. 1066; Howard v. State, 50 Ind. 190; Pollard v. State, 53 Miss. 410; Chappel v. State, 7 Cold. 92; Gibbs v. State, 1 Tex.App. 12; Commonwealth v. Choate, 105 Mass. 451. (2) The testimony of Dr. Williamson, and the other medical experts who were witnesses on the trial of this case, was such as to require of the court an instruction as if an attempt only to perpetrate the crime had been proven; and it was error in the court to omit the giving of such an instruction. State v. Branstetter, 65 Mo. 149-155; State v. Banks, 73 Mo. 592; State v. Brady, 87 Mo. 142; 2 West. Rep. 131. (3) There was no occasion for the giving of the seventh instruction in this case. No such attempt had been made on either side to impeach the credibility of any witness, nor does anything appear in the testimony of any one of them which renders the instruction either necessary or proper. (4) The verdict in this case was contrary to the law and the evidence. There is no positive proof to charge the defendant, except that of the injured party. She is as liable to be mistaken as a thousand others have been who have testified to supposed identity. The circumstances relied upon by the state to corroborate her testimony, when carefully considered, must be regarded as weak, uncertain, and insufficient. There is not one of them but is capable of explanation entirely consistent with the innocence of the accused, and one fact amongst them which appeared, more than any other, to have attracted the attention of the police officers, goes far to rebut the entire case presented by the state.

OPINION

Norton, C. J.

The defendant was indicted and tried in the criminal court of the city of St. Louis, and convicted of the crime of rape. From this judgment of conviction he appealed to the St. Louis court of appeals, where the judgment of the criminal court was reversed, and from this judgment of reversal the state has appealed to this court.

The defence relied upon at the trial was an alibi, and in reference thereto, and reasonable doubt, the court gave the following instructions:

"4. If the jury believe and find from the evidence that the defendant was not present at the place and time the alleged rape is stated to have been committed, by the prosecuting witness, Kate Farrell, but that the defendant, at the time of the alleged rape, was elsewhere, at another and different place than where the alleged rape is stated to have taken place by said Kate Farrell, then you should acquit the defendant."

"7. The jury are the sole and exclusive judges of the credibility of the witnesses. With that the court has nothing to do; and if you believe and find from the evidence that any witness or witnesses have wilfully testified falsely to any material fact in the cause, you are at liberty to disregard the whole, or any portion, of such witness' or witnesses' testimony."

"8. The law presumes the defendant to be innocent, and this presumption continues until his guilt has been established by the evidence in the case, to your satisfaction, and beyond a reasonable doubt. By the words, or terms, 'beyond a reasonable doubt,' is meant convinced to a moral certainty. If you are thus convinced of his guilt, it is your duty to convict; if not, it is your duty to acquit."

The court of appeals reversed the judgment of the circuit court, as stated in the opinion, "because (in the fourth instruction) the jury were directed to the defence of an alibi, in language which would be likely to convey to their minds the idea that it was a substantive affirmative...