8 S.W. 739 (Mo. 1888), State v. Graves

Citation:8 S.W. 739, 95 Mo. 510
Opinion Judge:Norton, C. J.
Party Name:The State v. Graves, Appellant
Attorney:Smith, Silver & Brown and Amos S. Smith and C. S. Essex for appellant. B. G. Boone, Attorney General, for the state.
Judge Panel:Norton, C. J. Ray and Black, JJ., concur, and Brace and Sherwood, JJ., dissent.
Case Date:June 04, 1888
Court:Supreme Court of Missouri
 
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Page 739

8 S.W. 739 (Mo. 1888)

95 Mo. 510

The State

v.

Graves, Appellant

Supreme Court of Missouri

June 4, 1888

Appeal from Hickory Circuit Court. -- Hon. W. I. Wallace, Judge.

Reversed and remanded.

Smith, Silver & Brown and Amos S. Smith and C. S. Essex for appellant.

(1) The demurrer interposed by the defendant to the evidence offered by the state should have been sustained. There was a total failure of evidence. It completely fails to support the verdict, so that the necessary inference is, that the jury acted from prejudice or partiality. State v. Chouteau Hunt, 91 Mo. 490; State v. Mansfield, 41 Mo. 471, 472; State v. Jaeger, 66 Mo. 173; State v. Thomas, 78 Mo. 327; State v. Musick, 71 Mo. 401; State v. Zorn, 71 Mo. 415; State v. Cook, 58 Mo. 546; State v. Preston, 77 Mo. 294; 3 Greenl. Evid. (13 Ed.) sec. 29, and notes et seq., and sec. 30 and notes; State v. Clark, 89 Mo. 423; State v. Burgdorf, 53 Mo. 65. (2) The statements of the attorney for the state in his closing argument were unfair and greatly prejudicial to defendant's case, and the court should have corrected the statements. Lloyd v. Railroad, 53 Mo. 509; State v. Kring, 64 Mo. 591; State v. Lee, 66 Mo. 165; State v. Zumbunson, 86 Mo. 111; R. S., sec. 1919; 1 Bish. Crim. Proc. (3 Ed.) secs. 975, 975a, and 975b; Marble v. Walters, 19 Mo.App. 134; Brown v. Railroad, 66 Mo. 599.

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

(1) Remarks of attorneys, during their arguments, should, if error, be objected to and exceptions saved at the time, that the trial court may have an opportunity to rule upon them. It is too late to wait until the motion for a new trial to interpose objections. State v. Forsythe, 89 Mo. 667. (2) The weight to be given the evidence and the credibility of witnesses is purely within the province of the jury. State v. Hert, 89 Mo. 590. It is only where the verdict is wholly unsupported by the evidence that this court will reverse. State v. Hunt, 91 Mo. 490.

Norton, C. J. Ray and Black, JJ., concur, and Brace and Sherwood, JJ., dissent.

OPINION

Page 740

[95 Mo. 511] Norton, C. J.

At the May term 1887, of the Hickory county circuit court, defendant was tried upon an indictment charging him with larceny in stealing nine hundred and fifty dollars, from one William Howard. He was convicted and his punishment assessed at [95 Mo. 512] four years imprisonment in the penitentiary, and the cause is before us on his appeal.

It is insisted by counsel that there is no evidence to support the verdict, or at least such a lack of evidence as to justify the belief that the verdict was the result of passion or prejudice. The evidence tended to show that Howard, whose money defendant is charged with stealing, was treasurer of Hickory county and lived at Hermitage, the county seat; that he kept his money in a safe in a small building in the court-house yard; that, on Friday night, the eighth of December, 1883, about one or two o'clock, his safe was blown open and about nine hundred...

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