State v. Sivils

• Decision Date: 23 June 1891
• Citation: 16 S.W. 880,105 Mo. 530
• Parties: STATE v. SIVILS.
• Court: Missouri Supreme Court

16 S.W. 880

105 Mo. 530

STATE v. SIVILS.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

CRIMINAL LAW — INSTRUCTIONS — ARSON — VERDICT.

1. Under Rev. St. Mo. 1879, § 1920, which forbids judges to comment on the evidence in criminal cases, it is error to instruct the jury that defendant's attempts to escape from custody and to procure false testimony are, if proved, circumstances to be considered in determining his guilt or innocence.

2. Where an indictment charges the defendant in one count with arson in the second degree, and in another with arson in the third degree, a verdict finding him guilty "in manner and form as charged in the indictment," and fixing his punishment at five years' imprisonment, is sufficient to support the judgment, though it does not specify the degree of his crime.

Appeal from circuit court, Wright county; C. C. BLAND, Judge.

Silver & Brown, for appellant. Atty. Gen. Wood, for the State.

MACFARLANE, J.

Defendant was tried and convicted of arson. The indictment contained four counts. The first charges one Thomas Pearson with arson in the second degree, (under Rev. St. 1879, § 1286,) by burning a building, the property of E. C. Steele, E. J. Pope, and James Tate, containing certain county records. The defendant Sivils is in this count charged with being willfully present and aiding and abetting said arson. The second count of the indictment sets out the same offense as the first count against Thomas Pearson, and charges defendant Sivils with being an accessory before the fact. The third count charges said Thomas Pearson with arson in the third degree, (under Id. § 1287,) and that defendant Sivils was present aiding and abetting the same. The fourth count sets out the same offense of arson in the third degree, (under Id. § 1287,) and charges defendant Sivils with being an accessory before the fact. The verdict was as follows: "We, the jury, find the defendant guilty in manner and form as charged in the indictment, and assess his punishment at imprisonment in the penitentiary for five years."

1. The evidence was not preserved in the bill of exceptions, and its sufficiency cannot be considered. It must therefore be assumed that the evidence tended to prove the facts upon which the instructions were hypothecated, and that it was sufficient to justify the verdict. If the facts to be found by the jury, under the instructions, did not warrant the conclusions of law to be deduced therefrom, then the instructions were improper. State v. Brown, 75 Mo. 317; State v. Mallon, Id. 355; State v. Burk, 89 Mo. 637, 2 S. W. Rep. 10. The court gave to the jury the following instructions: "(10) The court instructs the jury that if they believe, from the evidence, that Sig. Sivils, after his arrest for the crime charged in this indictment, tried to induce the guard to permit him to escape, such attempt to induce the guard to permit him to escape raises a strong presumption of his guilt, which circumstance, if so proven, it devolves upon the defendant to explain; and, unless explained to your satisfaction, you will consider this fact, in connection with all the other facts and circumstances in evidence, in determining the guilt or innocence of the defendant. (11) The court instructs the jury that if they believe from the evidence that the defendant at any time tried to procure any witness or witnesses to swear or testify falsely for him...