State v. Wells

• Decision Date: 04 October 1892
• Citation: 20 S.W. 232,111 Mo. 533
• Parties: The State v. Wells, Appellant
• Court: Missouri Supreme Court

20 S.W. 232

111 Mo. 533

The State v. Wells, Appellant

Supreme Court of Missouri, Second Division

October 4, 1892

Appeal from Monroe Circuit Court. -- Hon. Thos. H. Bacon, Judge.

Affirmed.

R. N Bodine for appellant.

(1) Instruction, numbered 1, given by the court, is erroneous. First on the question of reasonable doubt. Bressler v People, 5 W. Rep. 185, 192; State v. Crawford, 34 Mo. 200; State v. Head, 57 Mo. 252; State v Leeper, 78 Mo. 470. (2) It is further erroneous in requiring a reasonable doubt to be based either on the evidence or lack of evidence in the case. (3) It is also erroneous in its being a comment upon the testimony of the defendant to a greater extent than authorized by the statute, and to the prejudice of the defendant. (4) It is also erroneous in calling the attention of the jury to the fact that there were certain points upon which the defendant did not testify.

John M. Wood, Attorney General, for the State.

(1) It is not proper in the instruction on reasonable doubt to single out a particular fact, and base the instruction thereon. State v. Schoenwald, 31 Mo. 147; State v. Christian, 66 Mo. 138. (2) There is no error in the record justifying a reversal.

OPINION

Thomas, J.

The defendant was convicted in the circuit court of Monroe county in November, 1891, for an assault upon Rose Vivian with intent to ravish her, and was sentenced therefor to imprisonment in the penitentiary for a term of two years, and he has appealed to this court.

The only error assigned for the reversal of the judgment is giving the following instructions to the jury: "As to the law arising upon any testimony in the case tending to prove or disprove anything in issue it is the duty of the court to instruct, irrespective of any question as to the credibility of any witness on whose testimony such instruction may be founded, and irrespective of the probabilities of such testimony and irrespective of the value of the evidence furnished by such testimony. It is not the duty of the court to give, and the court in no case undertakes to give, any instruction hypothecating anything which no testimony in the case in anywise tends to prove. But all questions of credibility, probability and value aforesaid are exclusively for the determination of the jury, and it is for the jury alone to say whether or not the proof makes out the case put by a hypothetical instruction. No such instruction is to be taken as any intimation that anything has been proved or disproved, and no instruction is to be taken as either in commendation or disparagement of any testimony or evidence in the cause.

"The defendant testifying in the case is a competent witness in the cause. As such competent witness such defendant is to be treated the same as if such defendant were not a party, and not interested, and to be so treated in all respects except that such defendant as such witness is not liable to cross-examination or reflection as to any matter not referred to in such defendant's examination in chief. The instructions are bound to recognize such defendant's testimony and declare the law arising on the case disclosed by such defendant's testimony the same as if such defendant were not a party and not interested; but in weighing the whole evidence the jury may consider the interest, if any, prejudice, bias, if any, or relationship if any, of any witness who may have testified in the case.

"Until defendant's alleged guilt, if any, is proved beyond a reasonable doubt of defendant's guilt, the law presumes the defendant innocent.

"The burden is on the state to prove under the instructions herein, by evidence, prevailing over every defense herein, all the things necessary to the proof of defendant's guilt as alleged.

"Besides this, the burden is on the state to prove beyond a reasonable doubt the defendant's alleged guilt.

"The burden of proving beyond a reasonable doubt the defendant's alleged guilt is a burden that never is shifted, and that cannot be shifted.

"By such reasonable doubt is meant not a reasonable doubt as to the proof or disproof of some one or some of several things which if proved may be from the evidence found contributive or necessary to proof of defendant's alleged...