State v. Gann
| Decision Date | 31 October 1880 |
| Citation | 72 Mo. 374 |
| Parties | THE STATE v. GANN, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Dallas Circuit Court.--HON. R. W. FYANN, Judge.
AFFIRMED.
Amos S. Smith for appellant.
J. L. Smith, Attorney-General, for the State.
The defendant was indicted in the Dallas circuit court under section 29, page 449, Wagner's Statutes, for shooting at one Peter Looney, and, on a trial at the October term, 1879, was found guilty and sentenced to the penitentiary for a term of two years, and has brought his case here by appeal. The only errors complained of are the giving of instructions for the State, and refusing instructions asked for by defendant.
The first instruction for the State told the jury, if they found defendant guilty, as charged in the indictment, they should “assess his punishment at not less than two nor more than five years in the penitentiary, or by confinement in the county jail not less than six months; or, by both a fine not less than $100, and confinement in the county jail not less than six months, or by a fine of not less than $100.” § 29, supra. The punishment prescribed for the crime of which he was accused, is “imprisonment in the penitentiary not exceeding ten years,” and what the court, in the instruction, declared to be the punishment, is that prescribed for the offense defined in the 32nd section. The court erred, but the defendant should be the last person to complain of it. His punishment, if guilty, under the 29th section, could not have been less than two years imprisonment in the penitentiary, and might have been ten, while, by the error of the court, he might have suffered only imprisonment in the county jail, or a fine of $100. It is not an error for which the judgment should be reversed, at his instance. The State might have complained of the instruction. The case is unlike that of the State v. Arter, 65 Mo. 654, in which it was held that on the trial of a party for an alleged crime, the jury should not be instructed in a manner to warrant his conviction of another and different offense. They were required in the case at bar to find against him the facts constituting the offense with which he was charged, before they could convict him, and the only error was, in permitting them to impose a lighter punishment than the law prescribed. If a different punishment than that prescribed for the offense, even what would generally be esteemed a lighter punishment, had in fact been imposed upon defendant, a constitutional question not entirely free from difficulty would have been presented.
The instruction in regard to a reasonable doubt is also complained of, but it seems that the only objection to it is, that it is not in the form in which it is generally given. There is no prescribed form in which it is required to be given. If the...
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