Nathan v. State

• Citation: 8 Mo. 631
• Parties: NATHAN, A SLAVE, v. THE STATE.
• Decision Date: 31 July 1844
• Court: United States State Supreme Court of Missouri

8 Mo. 631

NATHAN, A SLAVE,

v.THE STATE.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO MACON CIRCUIT COURT.

KIRTLEY, for Plaintiff. 1. The verdict was clearly against the evidence. 2. Several of the jurors had prejudged the case. 3. The indictment is insufficient.

BAY, Attorney-General, for The State. 1. The offense charged is not a felony, under the act of 1835, concerning Crimes and Punishments, not being punishable “““with death, or by imprisonment in the penitentiary,” but by castration; therefore, it was not necessary to charge in the indictment, that the act was done feloniously, or with a felonious intent. Art. 9, § 36, p. 216, of said act; Johnson v. The State, 7 Mo. R. 183. 2. The evidence is not saved in a bill of exceptions, nor is the evidence in the cause contained in what, perhaps, was intended for a bill of exceptions, but merely the “““substance” of the evidence. Rev. Stat., 1835, p. 491, § 23; Crane v. Taylor, 7 Mo. R. 285, and the cases referred to in the head note. 3. The defendant cannot object to the competency of the jury, having omitted to exercise his right of challange either to the array or to the polls. Besides, it does not appear, from the record, that the defendant was ignorant of the facts contained in the affidavits. Rex v. Sheppard, 1 Leach's C. C., 101; Booby v. The State, 4 Yerger, 111; Lisle v. The State, 6 Mo. R. 431; Rev. Stat. 1835, Practice and Proceedings in Criminal Cases, art. 6, § 12, p. 490.

NAPTON, J.

The plaintiff in error was indicted and convicted for an attempt to commit a rape upon a white women. To reverse the judgment, three points are relied upon: first, that the indictment does not charge that the attempt was made felonionsly; second, that the verdict is against the weight of testimony; and thirdly, that a portion of the jurors had prejudged the cause, and a new trial should therefore have been granted. In relation to the last point, it is sufficient to observe, that the motion and affidavits upon which the action of the court was founded, though spread upon the record by the clerk, are not preserved by bill of exceptions. It has been so often settled, that this court will not disturb the verdict of a jury where no instructions have been asked or given, and where a state of facts is established by the evidence about which jurors or judges might differ, that it is deemed unnecessary to recite the testimony preserved in the bill of exceptions. The verdict is, in the opinion of the court,...