State v. Johnson

• Citation: 91 Mo. 439,3 S.W. 868
• Parties: STATE v. JOHNSON.
• Decision Date: 21 March 1887
• Court: United States State Supreme Court of Missouri

3 S.W. 868

91 Mo. 439

STATE v. JOHNSON.

Supreme Court of Missouri.

March 21, 1887.

1. CRIMINAL PRACTICE — RAPE — INSTRUCTION — ALIBI.

On the trial of a prosecution for rape, the court gave the following instruction as to the defense of alibi, relied on by the accused: "If the jury believe, and find from the evidence, that the defendant was not present at the place and time the alleged rape is stated to have been committed by the prosecuting witness, K. F., but that the defendant, at the time of the alleged rape, was elsewhere, at another and different place than where the alleged rape is stated to have taken place by said K. F., then you should acquit the defendant." Held proper, as against the objection that the language of the instruction was calculated to convey to the minds of the jury the idea that an alibi is a substantive affirmative defense, which must be made out by a preponderance of evidence; and that such error was not cured by an appropriate instruction as to reasonable doubt in its application to the whole case.

2. SAME — INSTRUCTION — ALIBI.

Evidence of alibi is ordinary evidence, to be treated in the instructions to the jury as is other evidence of like sort.

3. RAPE — INSTRUCTIONS — DEGREES OF CRIME.

The rule requiring the court to instruct as to the law relating to a lesser degree of the crime charged, where the evidence is not conclusive as to defendant's guilt of the higher degree, (State v. Branstetter, 65 Mo. 149,) does not apply, in a case of rape, of which crime there are no degrees.

4. CRIMINAL PRACTICE — INSTRUCTION — CREDIBILITY OF WITNESS.

An instruction correctly embodying the rule arising from the maxim, falsus in uno, falsus in omnibus, is proper, where the defense is an alibi, and the testimony of the witnesses directly conflicts.

Appeal from St. Louis court of appeals.

Indictment for rape.

The Attorney General, for the State. C. P. Johnson, for defendant.

NORTON, J.

The defendant was indicted and tried in the criminal court of the city of St. Louis, and convicted of the crime of rape. From this judgment of conviction he appealed to the St. Louis court of appeals, where the judgment of the criminal court was reversed, and from this judgment of reversal the state has appealed to this court. The defense relied upon at the trial was an alibi; and in reference thereto, and reasonable doubt, the court gave the following instructions:

"Fourth. If the jury believe and find from the evidence that the defendant was not present at the place and time the alleged rape is stated to have been committed by the prosecuting witness, Kate Farrell, but that the defendant, at the time of the alleged rape, was elsewhere, at another and different place than where the alleged rape is stated to have taken place by said Kate Farrell, then you should acquit the defendant."

"Seventh. The jury are the sole and exclusive judges of the credibility of the witnesses. With that the court has nothing to do; and, if you believe and find from the evidence, that any witness or witnesses have willfully testified falsely to any material fact in the cause, you are at liberty to disregard the whole, or any portion, of such witness' or witnesses' testimony."

"Eighth. The law presumes the defendant to be innocent, and this presumption continues until his guilt has been established by the evidence in the case, to your satisfaction, and beyond a reasonable doubt. By the words or terms, `beyond a reasonable doubt,' is meant convinced to a moral certainty. If you are thus convinced of his guilt, it is your duty to convict; if not, it is your duty to acquit."

The court of appeals reversed the judgment of the circuit court, as stated in the opinion, "because [in the fourth instruction] the jury were directed to the defense of an alibi in language which would be likely to convey to their minds the idea that it was a substantive affirmative defense, which must be made out by a preponderance of evidence, an error which was not cured by the giving an appropriate instruction as to reasonable doubt, in its...