6 Mo. 6 (Mo. 1839), Nicholas v. State

Citation:6 Mo. 6
Opinion Judge:MCGIRK, J.
Attorney:WILSON, for Appellant
Court:Supreme Court of Missouri

Page 6

6 Mo. 6 (Mo. 1839)




Supreme Court of Missouri.

August Term, 1839

WILSON, for Appellant. There are but two points in this cause. 1st. The court had no jurisdiction at a special term, unless the defendant had been charged with the offense for which he was tried and in confinement at the time of ordering the special term. See Laws of Mo. 159, § 48. 2d. The court erred in refusing to give the following instruction for defendant: " That the jury must acquit if they have reasonable doubt of his guilt."

MCGIRK, J.[a1]

It appears from the record that, on the first day of January 1839, the plaintiff being in the custody of the law, Judge Scott made an order to the sheriff of Cooper county for holding a special term of the Circuit Court on the 3rd Monday of said month, for the trial of Nicholas: accordingly at the time and place appointed the court was holden, and the grand jury found a bill against Nicholas for stealing a black horse of one John Callaway. At the same time and place the grand jury also found a bill against Nicholas for stealing a certain sorrel horse, the property of P. R. Hayden. To both these indictments the defendant pleaded not guilty, a jury was impanneled in each case, and the prosecution gave full and clear evidence of the defendant's guilt. The prisoner's counsel then asked the court to instruct the jury in each case, that if they had any reasonable doubt of the guilt of the prisoner it was their duty to acquit. The judge stated that such was the general law. That such instruction was generally asked and generally given. But that in this case there was no conflicting evidence, and as no suitable case existed to call for such instruction it was an abstraction; he therefore would not give it. The refusal to give this instruction is complained of as error.

We do not perceive that the court erred in refusing to give this instruction. It has often been holden by this court that the Circuit Court is neither bound to give irrelevant nor impertinent instructions, and that to entitle a party to an instruction asked he must have a suitable case made by the evidence. Here the record does not show such a case, there was therefore no error committed in refusing the instruction asked.[(a)]

Another point was alleged which was that by law a person in jail can only be tried at special term for an offense...

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