State v. Fox

• Decision Date: 07 March 1899
• Citation: 148 Mo. 517,50 S.W. 98
• Parties: STATE v. FOX.
• Court: Missouri Supreme Court

50 S.W. 98

148 Mo. 517

STATE v. FOX.

Supreme Court of Missouri, Division No. 2.

March 7, 1899.

INDICTMENT — DUPLICITY — OBJECTION — DISINTERMENT OF BODY FOR DISSECTION — EVIDENCE — SUFFICIENCY — ALIBI — INSTRUCTIONS.

1. An objection to an indictment for duplicity must be raised before verdict.

2. Where one was indicted under Rev. St 1889. § 3842, for disinterring and removing a dead body for the purpose of dissection, surgical

and anatomical experiment and preparation, evidence that defendant was a medical student, and had disinterred and removed the body, and had it in his possession, and had declared to one who assisted him in carrying it away that his professor would give him $50 for such a subject to work on, but not otherwise showing his purposes, is insufficient to convict.

3. On the trial of an indictment for disinterring a dead body on or about March 7, 1895, an instruction that, if defendant was in another place from 9 to 11 or 12 o'clock in the evening of that day, he should be acquitted, was properly refused, since the offense might have been committed before or after that time.

4. Requesting an incorrect instruction based on evidence introduced to prove an alibi requires a correct instruction on that issue.

Appeal from circuit court, Chariton county; W. S. Stockwell, Special Judge.

James R. Fox was convicted of disinterring and removing a dead body for the purpose of dissection, surgical and anatomical experiment and preparation, and he appeals. Reversed.

Luther N. Dempsey, for appellant. The Attorney General, for the State.

BURGESS, J.

Defendant was convicted in the circuit court of Chariton county at its April term, 1898, and his punishment fixed at two years' imprisonment in the penitentiary, for having at said county feloniously dug up, disinterred, and removed the dead body and remains of a human being from the grave in which it was interred, for the purpose of dissection, surgical and anatomical experiment and preparation. He appeals.

The case was here on a former occasion (State v. Fox, 136 Mo. 139, 37 S. W. 794), to which reference may be had for a statement of the facts. The judgment was then reversed, and the cause remanded upon the ground of there being no evidence to sustain the verdict. After the case was remanded, a new indictment was preferred against defendant, containing two counts, which, leaving off the formal parts, are as follows: "The grand jurors for the state of Missouri, summoned from the body of the county of Chariton, in the state of Missouri and impaneled, sworn, and charged to inquire within and for the body of the said Chariton county, upon their oath, do charge and present that one James R. Fox, on or about the 7th of March, A. D. 1895, at and in the county of Chariton and state of Missouri, did then and there unlawfully and feloniously dig up, disinter, and remove the dead body and remains of a human being, to wit, the dead body and remains of one Leona Gates, deceased, from the grave in which said dead body and remains had then and there before been interred, and then and there was, for the purpose of selling said dead body and remains, against the peace and dignity of the state." "The grand jurors aforesaid, upon their oath aforesaid, do further charge and present that one James R. Fox, on or about the 7th day of March, A. D. 1895, at and in the county of Chariton and state of Missouri, did then and there unlawfully and feloniously dig up, disinter, and remove the dead body and remains of a human being, to wit, the dead body and remains of one Leona Gates, from the grave in which the said dead body and remains had then and there before been interred, and then and there was, for the purpose of dissection, and surgical and anatomical experiment and preparation, of said dead body and remains, against the peace and dignity of the state." It was under the second count that the conviction was had. The facts disclosed upon the last trial were not materially different from the first. At the close of all the evidence, defendant interposed a demurrer to the evidence, which was overruled, and exceptions duly saved. The prosecuting attorney then elected to stand on the second count in the indictment.

At the instance of the state, and over the objection and exception of defendant, the court instructed the jury as follows: "(1) The court instructs the jury that the defendant in this case is presumed to be innocent, and not guilty as charged; and you should act upon this presumption of innocence, and acquit him, unless you shall find and believe from the evidence in the case, beyond a reasonable doubt, that he is guilty. Such a doubt, to authorize an acquittal, should be a substantial doubt, and not a mere possibility of defendant's innocence. (2) The defendant is a competent witness, testifying in his own behalf; and you should fully and fairly consider his testimony, together with all the other testimony in the case; but you may take into consideration the fact that he is testifying in his own behalf and the interest he has in the result of the trial as affecting his credibility as a witness. (3) The jury are the sole judges of the credibility of the witnesses, and the weight and value to be given to their testimony; and, if you find and believe from the evidence in the case that any witness has willfully sworn falsely to any material fact involved in the trial of this case, then you are at liberty to reject and treat as untrue any or all of such witness' testimony. (4) If the jury shall find and believe from the evidence, beyond a reasonable doubt, that the defendant, on or about the 7th day of March, 1895, at and in the county of Chariton and state of Missouri, did then and there dig up, disinter, and remove the dead body and remains of Leona Gates, deceased, from the grave in which said dead body and remains had been interred, and then and there was, for the purpose of dissection, and surgical and anatomical experiment and preparation, of said dead body and remains, then you should find him guilty as charged in the second count of the indictment. (5) The jury are instructed that the intent of the defendant in removing the dead body of Leona Gates from the grave where it had been interred, if you find that he removed said body, need not be proved by direct and positive testimony, but may be inferred from the facts and circumstances in proof." Defendant asked the following instructions: "(1) The court instructs the jury that they are the sole judges of the testimony and weight and value to be given to it, and of the credibility of the witnesses; and, in determining the credibility of a witness, the jury may take into consideration the manner and appearance of the witness on the stand, the reasonableness of the witness' testimony, his interest, if any, in the result of the trial; and, if the jury believe from the evidence that any witness has willfully sworn falsely as to any material fact in this case, they are at liberty to disregard the whole or any part of the testimony of such witness. (2) The court instructs the jury that, before you can convict the defendant, it devolves upon the state to prove by credible evidence, beyond a reasonable doubt, the guilt of the defendant as charged in the indictment. And in this connection the court instructs the jury that a reasonable doubt exists when your minds are in that condition that you are neither morally certain that defendant is guilty, nor yet morally certain that he is innocent. And if you are neither morally certain that he is innocent, nor yet morally certain that he is guilty, you must acquit him. (3) The court instructs the jury that if you find from the evidence that the defendant, J. R. Fox, was in the town of Marceline from nine o'clock...