State v. Ihrig

• Decision Date: 12 October 1891
• Citation: 106 Mo. 267,17 S.W. 300
• Parties: STATE v. IHRIG.
• Court: Missouri Supreme Court

17 S.W. 300

106 Mo. 267

STATE v. IHRIG.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

BURYING INFANT — CONCEALMENT OF BIRTH — INDICTMENT — CREDIBILITY OF WITNESS — COMPETENCY OF JUROR.

1. An indictment under Rev. St. Mo. 1889, § 3479, providing that "every woman who shall be delivered of a child, and shall endeavor privately, by * * * burying the same, * * * to conceal the birth thereof, so that it may not be known whether it was born alive or not, shall be deemed guilty of a felony," need not allege any intent on the part of defendant in burying the child.

2. An instruction that defendant is a competent witness on her own behalf, and that in passing on her testimony the jury may take into consideration that she is defendant and her interest in the result of the case, is not objectionable as being a comment on defendant's testimony.

3. Where a juror is charged with having expressed an opinion adverse to defendant, but on conflicting evidence the trial judge finds that he did not, his finding will not be disturbed.

4. On prosecution for endeavoring to conceal the birth of a child by burying its body, it appeared that defendant was unmarried, the mother of five children, living alone in the country with two small children; that the neighbors observed her pregnancy, but that on being accused of it she denied it; that the child was born at night; that the next day defendant buried the child, and covered over the grave carefully; that the next day the grave was discovered; and that when she saw people at it she left the house, and walked six miles. Defendant testified that she did not endeavor to conceal the birth of the child, and that she had no friends. Held, that the evidence supported a conviction.

Appeal from circuit court, Hickory county; W. I. WALLACE, Judge.

Anna Ihrig was indicted and convicted of endeavoring to conceal the birth of a child by secretly burying it. Defendant appeals. Affirmed.

J. D. Abee, Wm. O. Mead, and J. D. Irvin, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

1. Defendant was indicted by the grand jury of Hickory county under section 3479, Rev. St. 1889, for endeavoring to conceal the birth of a male child of which she had been delivered, by secretly burying its body, "so that it was not known, and could not be known, whether it was born alive or not." The indictment does not charge any intent or purpose of defendant in secretly burying the child, and objection is urged against its sufficiency upon that ground. The statute provides that "every woman who shall be delivered of a child, and shall endeavor privately, by * * * burying the same, * * * to conceal the birth thereof, so that it may not be known whether it was born alive or not, shall be deemed guilty of a felony, and shall, upon conviction, be imprisoned in the penitentiary not more than seven years." The indictment charges the offense as it is defined by the statute, and follows the language of the statute. Every necessary averment is made. This is a copy, in all material averments, of an indictment framed upon the same section and approved by this court in the case of State v. White, 76 Mo. 96. In that case it was held that "no specific intent need be charged." The indictment is sufficient.

2. Defendant objects to the following instruction given by the court: "The defendant is a competent witness in her own behalf, and you should take her testimony with consideration, and give it such weight as you may believe it entitled to; and in passing upon her testimony, and weighing her statements, you may take into consideration the fact that she is the defendant, and her interest in the result of the case." The objection urged to the...