State v. Horn

• Decision Date: 02 May 1893
• Citation: 115 Mo. 416,22 S.W. 381
• Parties: STATE v. HORN.
• Court: Missouri Supreme Court

22 S.W. 381

115 Mo. 416

STATE v. HORN.

Supreme Court of Missouri, Division No. 2.

May 2, 1893.

CRIMINAL LAW — REVIEW ON APPEAL — NEW TRIAL.

1. Where no exceptions are raised on a motion for new trial in regard to the admission or exclusion of evidence, the action of the trial court in that regard will not be reviewed on appeal.

2. Rev. St. 1889, § 4208, provides that the court shall instruct the jury in writing on all necessary questions of law, and that failure to do so shall be good cause for setting aside a verdict against defendant. Held, that where the court instructed the jury that they were the judges of the evidence, and might disregard the testimony of any witness whom they believed had sworn falsely, an exception, on motion for new trial, to the failure of the court "to instruct the jury as to the attempted impeachment by the state of defendant's witnesses," was properly overruled.

Appeal from circuit court, Oregon county; W. N. Evans, Judge.

John D. Horn was convicted of felonious assault, and appeals. Affirmed.

Livingston & Green, for appellant. The Attorney General, for the State.

BURGESS, J.

At the October term, 1889, of the circuit court of Howell county the defendant was indicted for a felonious assault committed on one John L. Matthews, by stabbing him with a knife. At the July term, 1891, defendant made an application for a change of venue on account of prejudice of the inhabitants of Howell, Ozark, and Douglass counties, which was granted by the court, and the venue was changed to Oregon county. At the February term, 1892, of the Oregon circuit court, the defendant was convicted, and his punishment assessed at a fine of $100 and three months' imprisonment in the county jail. Defendant then filed motions for new trial, and in arrest, which, being overruled, he appealed to this court.

The evidence tends to sustain the charges in the indictment, as well, also, as that defendant acted in self-defense. There is no question saved in the motion for a new trial as to the admission or exclusion of evidence. No brief has been filed on the part of defendant. The case was presented to the jury in a carefully and well-prepared set of instructions, no objection thereto being suggested in the motion for a new trial, except a general one; and we have been unable to discover any, after a very careful investigation of them. They were certainly very favorable to the defendant, and embraced every phase of the case suggested by the evidence....