State v. Mallon

Decision Date30 April 1882
Citation75 Mo. 355
PartiesTHE STATE v. MALLON, Appellant.
CourtMissouri Supreme Court

Appeal from Knox Circuit Court.--HON. BENJ. E. TURNER, Judge.

REVERSED.

O. D. Jones and S. B. Davis for appellant.

D. H. McIntyre, Attorney General, for the State.

1 PLEADING, CRIMINAL.

HENRY, J.

The defendant was indicted for robbery in the first degree. The indictment contained two counts, one charging defendant with taking the property from the person of the prosecutor by putting him in fear, and the other, with taking it from his person by violence, etc. A motion to quash, on the ground that the counts were repugnant to each other, was overruled. The court did not err in overruling that motion. Each count contained a criminal charge sufficiently alleged, and the repugnance of the counts was no ground for quashing the indictment.

2. ______: election.

Nor did the court err in refusing to compel the State to elect upon which count she would proceed. It is usual to frame several counts where only a single offense is intended to be charged, for the purpose of meeting the evidence as it may transpire at the trial; and in such cases the court will not compel the prosecutor to elect. State v. Porter, 26 Mo. 206; State v. Pitts, 58 Mo. 556.

3 PRACTICE IN SUPREME COURT: instructions.

The evidence is not preserved by the bill of exceptions, and we cannot say, therefore, whether it warranted the court in giving the instructions complained of or not. Evidence might legitimately have been introduced under either count of the indictment, which would have justified the court in giving the instructions, and as appellant has not preserved the evidence, we must assume that such evidence was adduced, especially as the bill of exceptions contains the following statement: “The trial was proceeded with, and the State offered evidence tending to prove the commission of the crime by the defendant, and sufficient to support a conviction as admitted by the attorneys for defendant, in this their bill of exceptions, and among other evidence proved that defendant had broken jail while confined on this charge and secretly left the State.”

4. CRIMINAL LAW: breaking jail.

Defendant testified as a witness in his own behalf, and with respect to his having broken jail, as follows: “I did not break jail because I feared a trial and conviction on this charge; the reason was, I was mistreated.” The answer was objected to by the State's attorney, and the objection was sustained by the court. In this, we think, the court erred. Evidence that one accused of a crime has broken or attempted to break jail, is admissible, as tending to prove guilt, and, therefore, any evidence on the part of the accused, explanatory of such attempt, and tending to show that it was not prompted by a consciousness of guilt, but by other considerations consistent with innocence, is admissible.

The error committed by the court was not cured by an instruction given at the instance of defendant: “That although the jury may believe from the evidence that the defendant did break jail while confined...

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30 cases
  • State v. Fairlamb
    • United States
    • Missouri Supreme Court
    • 13 Marzo 1894
    ...should be so framed as to include all the circumstances, that the defendant may have the benefit of such explanatory facts. State v. Mallon, 75 Mo. 355; State v. King , 78 Mo. 555; State v. Foo, 110 Mo. 7. The state's seventh instruction has been frequently criticized by this court, in tell......
  • State v. Wynne
    • United States
    • Missouri Supreme Court
    • 5 Septiembre 1944
    ...character was pending against defendant, and that no movement was for the purpose of avoiding arrest. State v. King, 78 Mo. 555; State v. Mallon, 75 Mo. 355; Criminal Evidence, sec. 750; 16 C.J. 551; State v. Marshall, 115 Mo. 383, 22 S.W. 452; State v. Jackson, 95 Mo. 623, 8 S.W. 749; Lame......
  • State v. Brickey
    • United States
    • Missouri Supreme Court
    • 10 Junio 1941
    ... ... brief them for that reason.) The argument was within the ... legitimate range of defendant's evidence as to his high ... standing and good reputation. [State v. McBride (Mo.), 231 ... S.W. 592, 594[4]; State v. Swain, 239 Mo. 723, ... 730(VI), 144 S.W. 427, 428[7]; State v. Mallon", 75 ... Mo. 355, 358; 23 C. J. S., p. 583, sec. 1107.] The jury ... assessed the minimum punishment ...   \xC2" ... ...
  • State v. Gadwood
    • United States
    • Missouri Supreme Court
    • 3 Mayo 1938
    ... ... 305; State v. Graham, 46 ... Mo. 490; State v. Matthews, 20 Mo. 55; Koonse v ... Mo. Pac. Ry. Co., 322 Mo. 813, 18 S.W.2d 467. (d) ... Defendant had the right to introduce evidence tending to ... explain his flight from the scene of the homicide. State ... v. Mallon, 75 Mo. 355; State v. Barham, 82 Mo ... 67. (e) Where, as here, conspiracy is alleged, evidence ... revealing the relationship between the defendant and the ... alleged coconspirators is material. State v. McGee, ... 188 Mo. 401, 87 S.W. 452; Johnston v. United States, ... 22 F.2d 1; 2 ... ...
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