The State v. Adair

• Decision Date: 26 February 1901
• Citation: 61 S.W. 187,160 Mo. 391
• Parties: THE STATE v. ADAIR, Appellant
• Court: Missouri Supreme Court

61 S.W. 187

160 Mo. 391

THE STATE v. ADAIR, Appellant

Supreme Court of Missouri, Second Division

February 26, 1901

Appeal from Jackson County Criminal Court. -- Hon. John W. Wofford Judge.

Affirmed.

James M. Chaney, Jr. for appellant.

(1) The verdict of the jury is against the evidence. (2) The verdict is against the law, as declared in the instructions given by the court. (3) (a) The court erred in refusing to give instruction 1 asked by defendant. People v. Fong Ah Sing, 64 Cal. 253; State v. Howell, 100 Mo 664; State v. Taylor, 134 Mo. 152. (b) The court should have given instruction 2 asked by defendant, in the nature of a demurrer to the evidence. (c) The court should have given instruction 3 asked by defendant. State v Lewis, 69 Mo. 92; State v. Edwards, 109 Mo. 322. (4) The court erred in giving instructions 1, 2, 3, 4 and 5. (a) Instruction 1 is so worded as to fall within the doctrine laid down in State v. Woodward, 131 Mo. 372. (b) Instruction 3 is clearly erroneous. State v. Blue, 136 Mo. 44. (c) Number 4 is misleading, and does not state the law on alibi. State v. Howell, 100 Mo. 628; State v. Tatlow, 136 Mo. 678; Walker v. State, 42 Texas, 360. (d) Number 5 is erroneous. Bank v. Murdock, 62 Mo. 74; Batterson v. Vogel, 10 Mo.App. 239; White v. Maxcy, 64 Mo. 559. (5) The court erred in admitting illegal and irrelevant testimony. (6) The court erred in excluding from the jury proper, competent and relevant testimony offered by the defendant.

Edward C. Crow, Attorney-General, and Sam B. Jeffries Assistant Attorney-General, for the State.

(1) This court has frequently held that where there is evidence showing guilt it would not invade the province of the jury and overthrow the verdict for want of evidence. (2) Defendant complains because the court refused to give his instruction number one. In this no error was indulged because the court had fully instructed on the question there involved. Instruction number four given by the court fully covered the question as to defendant's presence at the place of the robbery at the time of the commission of the crime. That was sufficient and it was not essential to give the instruction asked. State v. Jones, 78 Mo. 278; State v. Parker, 106 Mo. 217; State v. Elliott, 90 Mo. 150; State v. Jump, 90 Mo. 171; State v. Luke, 104 Mo. 563; State v. Sansone, 116 Mo. 1; State v. Gamble, 119 Mo. 427; State v. Jennings, 81 Mo. 185; State v. Johnson, 91 Mo. 439; State v. Sanders, 106 Mo. 188; State v. Rockett, 87 Mo. 666; State v. Shroyer, 104 Mo. 441. (3) It is urged that error was committed in the instruction on the question of reasonable doubt. The case of State v. Blue, 136 Mo. 42, is cited as authority for such objection. The objection can not be sustained. The instruction requires the reasonable doubt to exist, with a view to all the evidence in the case. It is not subject to the same error as contained in the Blue case, but on the other hand strictly conforms to the criticisms there made. State v. Sacre, 141 Mo. 64; State v. Knock, 142 Mo. 515.

OPINION

SHERWOOD, P. J.

The verdict of the jury found defendant guilty of robbery in the first degree, and assessed his punishment at five years in the penitentiary.

The instructions given by the court were as follows:

"1. The court instructs the jury that if they find and believe from the evidence that the defendant James Adair, at the county of Jackson and State of Missouri, at any time within three years next before the seventeenth day of April, 1900, did unlawfully and feloniously make an assault upon the witness, Bessie Proctor, and did by force and violence to her person in her presence and against her will and without any honest claim to the same with the felonious intent to deprive the owner of her property therein and convert the same to his own use, unlawfully and feloniously take from the witness, Bessie Proctor, any of the property mentioned in the indictment, of any value whatever, the property of the witness, Bessie Proctor, you will find the defendant guilty of robbery in the first degree and assess his punishment at imprisonment in the State penitentiary for any time not less than five years.

"'Feloniously,' as used in these instructions, means wickedly and against the admonition of the law; unlawfully.

"2. The court instructs the jury, that the defendant is a competent witness in this case, and you must consider his testimony in arriving at your verdict, but in determining what weight and credibility you will give to his testimony in making up your verdict, you may take into consideration, as affecting his credibility, his interest in the result of the case, and that he is the accused party on trial testifying in his own behalf.

"3. The court instructs the jury that before they can convict the defendant, they must be satisfied of his guilt beyond a reasonable doubt; such doubt to authorize an acquittal upon reasonable doubt must be a substantial doubt of the defendant's guilt, with a view to all the evidence in the case, and not a mere possibility of the defendant's innocence.

"4. The court instructs the jury that if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed, you will acquit the defendant.

"5. The jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony.

"In determining as to the credit you will give to a witness, and the weight and value you will attach to a witness's testimony, you should take into consideration the conduct and appearance of the witness upon the stand, the interest of the witness, if any, in the result of the trial, the motives actuating the witness in testifying, the witness's relation to, or feeling for or against the defendant, or the alleged injured party, the probability or improbability of the witness's statements, the opportunity the witness had to...