31 S.W. 20 (Mo. 1895), The State v. Lingle

Citation:31 S.W. 20, 128 Mo. 528
Opinion Judge:Gantt, P. J.
Party Name:The State v. Lingle, Appellant
Attorney:R. C. Nelson and Sallee & Goodman for appellant. R. F. Walker, Attorney General, for the state.
Judge Panel:Gantt, P. J. Burgess and Sherwood, JJ., concur. Burgess and Sherwood, JJ., concur.
Case Date:May 21, 1895
Court:Supreme Court of Missouri
 
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Page 20

31 S.W. 20 (Mo. 1895)

128 Mo. 528

The State

v.

Lingle, Appellant

Supreme Court of Missouri, Second Division

May 21, 1895

Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

R. C. Nelson and Sallee & Goodman for appellant.

(1) The court should have sustained defendant's demurrer to the evidence, for the reason that the transcript from the Gentry circuit court was not offered in evidence. State v. Gates, 20 Mo. 400; Daudt v. Harmon, 16 Mo.App. 203; Crone v. Dawson, 19 Mo.App. 214; Maupin v. Franklin Co., 67 Mo. 237; State v. Edwards, 19 Mo. 674; State v. Daugherty, 106 Mo. 182; Adler v. Long, 26 Mo.App. 226. (2) The Atchison circuit court had no jurisdiction of this cause, for the reason that the transcript from the Gentry circuit court did not contain a proper order changing the venue of the cause. R. S. 1889, sec. 4157; State v. Daniels, 66 Mo. 192. (3) The court erred in giving instruction number 1 for the state. It presents an issue not presented by the indictment, in the following clause: "And while she was still under the age of eighteen." Bank v. Murdock, 62 Mo. 70; State v. Nanert, 2 Mo.App. 295; Fairgrieve v. Moberly, 29 Mo.App. 141; Melvin v. Railroad, 89 Mo. 106; Kinney v. Railroad, 70 Mo. 252; Waddingham v. Hulett, 95 Mo. 528; State v. Warner, 57 Mo.App. 502. This instruction is in conflict with the first given at the instance of the defendant and is not cured by that instruction. Jones v. Talbott, 4 Mo. 279; State v. Herrell, 97 Mo. 105; State v. Nally, 87 Mo. 644; State v. Simms, 68 Mo. 305; State v. Jackson, 95 Mo. 623. (4) The second instruction for the state was erroneous in that it singled out the wife of defendant and gave a rule for determining her credibility different from that applied to other witnesses. State v. Hundley, 46 Mo. 414; State v. Young, 99 Mo. 66; State v. Anderson, 19 Mo. 241; State v. Schoenwald, 31 Mo. 147; State v. Smith, 53 Mo. 267. (5) The third instruction given for the state is palpably erroneous in that it instructs the jury to "take into consideration the character of the witness, his or her manner upon the stand, his or her interest, if any, in the result of the trial, his or her relation to or feelings toward the defendant," thus directly calling their attention to the position occupied by defendant's witnesses. State v. Orr, 65 Mo. 342. This error is not cured by the giving of a correct instruction on the part of defendant. State v. Nally, 87 Mo. 644; State v. Herrell, 97 Mo. 105; State v. Mitchell, 64 Mo. 191; State v. Jackson, 95 Mo. 623. (6) The fourth instruction for the state is erroneous in that it tells the jury that before they can acquit they must believe that the evidence of a higher offense is sufficient to convict the defendant if on trial for such higher offense. This is, in effect, instructing them that, before they can acquit, they must believe from the evidence, beyond a reasonable doubt, that defendant had feloniously ravished his ward. This is not the law of this state. In no criminal case in which a special defense is interposed does it devolve upon the defendant to establish such a defense beyond a reasonable doubt. State v. Hundley, 46 Mo. 414; State v. Rockett, 16 Mo.App. 554; State v. Howell, 100 Mo. 628; State v. Lewis, 69 Mo. 92. (7) The indictment in this case is fatally defective, and the judgment should have been arrested for that reason. It is true that no motion to quash it was filed, but where the indictment is wanting in a material allegation, and is not merely informal, advantage may be taken of the defect by motion in arrest or for the first time in the appellate court. State v. Meyers, 99 Mo. 107. The indictment does not even inferentially allege that Clara Wheatley was under the age of eighteen years at the time of her alleged defilement. This was a material allegation. "A clear substantive charge constituting the offense is as necessary as it ever was." State v. Reakey, 62 Mo. 40; State v. Fisher, 58 Mo. 256. The offense attempted to be set forth in the indictment is one of statutory origin, and where this is the case, care and precision is required to bring the accused within the exact terms of the statute. State v. Gabriel, 88 Mo. 631; State v. Arter, 65 Mo. 653; State v. Helm, 6 Mo. 263; State v. Evers, 49 Mo. 542; State v. Pemberton, 30 Mo. 376; State v. Houx, 109 Mo. 654; State v. Green, 111 Mo. 585; State v. Blair, 69 Mo. 317.

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

(1) An indictment setting forth what is necessary to constitute an offense, as defined by the statute, is sufficient. State v. Anderson, 81 Mo. 78; State v. Madden, 81 Mo. 421. The indictment in the case follows the language of the statute and is not, therefore, subject to valid objection. R. S. 1889, sec. 3487; State v. Terry, 106 Mo. 209. (2) No objections were made or exceptions saved to the introduction or exclusion of testimony prejudicial to appellant and on this point he can not properly be heard to complain. State v. Hope, 100 Mo. 347; State v. Meyers, 99 Mo. 107. (3) The first instruction given by the court formally defines the crime of a guardian defiling a ward and is not...

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