State v. Harkins

• Decision Date: 02 June 1890
• Parties: STATE v. HARKINS.
• Court: Missouri Supreme Court

13 S.W. 830

100 Mo. 666

STATE v. HARKINS.

Supreme Court of Missouri.

June 2, 1890.

CRIMINAL LAW — INSTRUCTIONS — ACCOMPLICE.

1. In the trial of an indictment for arson the court, instructing the jury, made use of the words "willfully" and "maliciously," without defining them. Held not error where they were used in their ordinary sense, and the evidence was clear, as it will be presumed to have been where it does not all appear in the bill of exceptions.

2. Section 1042, Rev. St. Mo. 1879, providing, "if any court shall not be held on the first day of the term, such court shall stand adjourned from day to day until the evening of the third day," applies to special as well as to regular terms.

3. While the uncorroborated testimony of an accomplice should be received with great caution, yet, if the jury are fully satisfied of its truth, and the state of facts sworn to establishes the guilt of the defendant, they may convict on that alone.

4. The fact that the prosecuting attorney made objectionable remarks in the absence of the judge, to which, therefore, no exceptions could be taken, must nevertheless be established in some appropriate manner in order to be effectual on appeal.

Appeal from circuit court, Ozark county; J. F. HALE, Judge.

Indictment for arson, under the provisions of section 1288. A grist-mill was the subject of the crime. One Caldwell was alleged to be the owner. The defendant and one Thomas Carroll were jointly indicted for the crime. A special term was called by the judge of said court upon the written request of defendant's attorneys and the prosecuting attorney, and upon due notice from the sheriff of said county. The special term was ordered for June 4th, but, the judge not appearing on that day, the sheriff adjourned said court until the next day, (June 5th.) The state dismissed the case as to Thomas Carroll, for the purpose of procuring his testimony on the trial of the defendant. The defendant was arraigned, and pleaded not guilty, and, being put upon his trial, was found guilty as charged, and his punishment assessed in the penitentiary for a term of six years. His motions for a new trial and in arrest being overruled, he appealed from the judgment and sentence of this court. The testimony in the cause, copying from the bill of exceptions, was the following: The state, to sustain the allegations of the indictment, introduced as a witness one Thomas Carroll, who was jointly indicted with the defendant, who, before the jury was sworn, was discharged by a nolle prosequi; that the said Carroll testified that he burned the mill as charged in the indictment, and that defendant was not with him at the time, but prior to the burning by him of the mill the defendant, Harkins, hired him to do the burning, and was to pay him $10 for doing so; that the defendant then and there objected to the defendant being sworn as a witness, for the reasons alleged in his motion for a new trial, and his objections were overruled, and he saved his exceptions at the time. The state introduced other witnesses, who testified in regard to some conversations had with defendant before and since the burning, and rested. The defendant introduced witnesses as to the general reputation of Carroll, and one Strong, who had testified in the case against defendant. The defendant was sworn as a witness. Mrs. Harkins, the wife of the defendant, was also produced and sworn as a witness. Defendant then rested.

Orr & Davis, for appellant. The Attorney General, for the State.

SHERWOOD, J., (after stating the facts as above.)

1. Section 1042, Rev. St. 1879, declares that "if any court shall not be held on the first day of the term, such court shall stand adjourned from day to day until the evening of the third day." This section is full authority for the course pursued in this case. The judge not appearing on the first day, the court stood adjourned to the next day by operation of law. This section applies as well to special terms as to regular terms. The law makes no distinction in this regard, and there is as much reason for its application in the one case as in the other.

2. It is objected that the first instruction for the state contains, in reference to the commission of the crime charged, the words "willfully" and "maliciously," without defining their meaning. The instruction in question is as follows: "(1) The court instructs the jury that if you find from all the facts and circumstances in this case that Thomas Carroll, at any time within three years before the finding of the indictment, and at and in the county...