State v. Luna
| Decision Date | 17 June 1942 |
| Docket Number | 37963 |
| Citation | 162 S.W.2d 859 |
| Parties | STATE v. LUNA |
| Court | Missouri Supreme Court |
Joe C Crain, of Ozark (Neale, Newman, Neale & Freeman and A. Ronald Stewart, all of Springfield, of counsel), for appellant.
Roy McKittrick, Atty. Gen., and Ernest Hubbell, Asst. Atty. Gen for respondent.
BOHLING, Commissioner.
Ewing Luna appeals from a judgment imposing a sentence of three years' imprisonment for the larceny of a cow.
Defendant complains of an instruction with respect to statements made by the defendant. The instruction is to the same effect as the instructions set out in the cases cited infra particularly the Garrison and Busch cases, and we do not repeat it here. This court en banc (State v. Johnson, 333 Mo. 1008, 1013, 63 S.W.2d 1000, 1005) stated of a like instruction: 'We think it also invades the province of the jury as to what weight they should give to the testimony, and should not be given.' See, also, State v. Duncan, 336 Mo. 600, 612[6], 80 S.W.2d 147, 153[15]; State v. Long, 336 Mo. 630, 643[8], 80 S.W.2d 154, 161[11]; State v. Busch, 342 Mo. 959, 963[2], 119 S.W.2d 265, 266[3]; State v. Garrison, 342 Mo. 453, 458[4], 116 S.W.2d 23, 25[7]. The State asserts the error was not preserved for review in defendant's motion for new trial; its brief giving as one of the grounds there assigned by defendant that the instruction failed to tell the jury to consider whether the admissions by defendant were voluntarily made. State v. Thomas, 250 Mo. 189, 215, 216, 157 S.W. 330, 338[19], held a similar instruction, under the facts there presented, prejudicial for failure to inform the jury they should disregard statements against interest not voluntarily made. Consult State v. Hancock, 340 Mo. 918, 925[5], 104 S.W.2d 241, 245[6]. Defendant's motion, among other things, charged error in informing the jury that all statements by defendant tending to establish his guilt were presumed to be true and in not informing the jury to take into consideration the circumstances under which the statements were shown to have been made. We consider the allegations in defendant's motion sufficient.
We have examined the other points briefed in the light of defendant's motion for new trial and the record. Without detailing them, we find they either pass out of the case upon our remanding it for new trial, or may be readily obviated or were not presented to the trial court and preserved for...
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State v. Hogan
...freedom of the jury as to the weight to be given to the evidence of the statements alleged to have been made by the defendant. State v. Luna, 162 S.W.2d 859; State Garrison, 342 Mo. 453, 116 S.W.2d 23; State v. Enyard, 108 S.W.2d 337; State v. Nibarger, 339 Mo. 937, 98 S.W.2d 625; State v. ......
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State v. Stroemple
...Duncan, 336 Mo. 600, 80 S.W.2d 147; State v. Busch, 342 Mo. 959, 119 S.W.2d 265; State v. Robertson, 351 Mo. 159, 171 S.W.2d 718; State v. Luna 162 S.W.2d 859; State v. Krauss, 171 S.W.2d 699. J. E. Taylor, Attorney General, and Robert L. Hyder, Assistant Attorney General, for respondent. (......
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...when there were no statements favorable to the defendant, was followed in State v. Garrison, 342 Mo. 453, 116 S.W.2d 23; State v. Luna (Mo.), 162 S.W.2d 859, and v. Busch, 342 Mo. 959, 119 S.W.2d 265, although the court in the latter case, l. c. 966 made this observation: "It might be argue......