The State v. Johnson
| Citation | 31 S.W. 339,129 Mo. 26 |
| Parties | The State v. Johnson, Appellant |
| Decision Date | 04 June 1895 |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court. -- Hon. D. W. Shackleford, Judge.
Affirmed.
Silver & Brown for appellant.
(1) Wherever it is the duty of the trial court, upon a proper request in a criminal case, to instruct the jury upon any material question of law arising on the evidence, it is equally obligatory upon it of its own motion to instruct the jury upon such matter, whether requested to do so or not. State v. Taylor, 118 Mo. 154. (2) court committed error in failing to instruct the jury on the offense of maiming, wounding and doing great bodily harm as described in Revised Statutes, 1889, section 3491. State v Melton, 102 Mo. 683. The indictment in the case at bar directly charges physical or bodily injury, and hence falls within the above decision. The motion for a new trial expressly assigns the omission to instruct on the above section as a ground for a new trial. (3) The court erred in giving that part of instruction number 1 authorizing the jury to disregard the whole or any part of the testimony of any witness who had testified willfully falsely. There was no evidence affording a foundation for said instruction. White v. Maxey, 64 Mo. 552; State v Cushing, 29 Mo. 217; Batterson v. Vogel, 10 Mo.App. 235. Defendants refused instruction number 7 should have been given. (4) The court committed error in refusing to instruct on the question of defendant's alleged flight and especially is this true in view of the use made of it by the counsel for the state in their argument to the jury. State v. Taylor, supra. (5) The trial court erred in excluding the affidavits filed by defendant in support of the motion for a new trial. They were competent and relevant on the hearing of the matters alleged in the motion, and their exclusion was error. 2 Thompson on Trials, sec. 2758. The affidavits were not controverted. The recollection of the trial court may on motion for new trial be aided by affidavits. 2 Thompson on Trials, sec. 2758; Chambers v. Thompson, 30 F. 38. (6) The court erred in refusing to admit the testimony tending to show that Mack did the the cutting, and also in refusing instruction number 8 asked by the defendant on that theory. Any evidence tending to show that some other person than the accused committed the act is competent. Of course mere hearsay statements are inadmissible.
R. F. Walker, Attorney General, F. E. Luckett, Prosecuting Attorney, and J. W. Zevely for the state.
(1) Under the testimony in this case the court was not authorized to give any instructions, except as to the crime for which the defendant had been indicted. This crime is entirely covered by the first paragraph of instruction number 1, given by the court. State v. Jones, 86 Mo. 628. Defendant should have excepted at the time the court failed to give the instruction of which he now complains. State v. Cantlin, 118 Mo. 111. (2) Nor did the court commit reversible error in that paragraph of instruction number 1, relating to the credibility of witnesses. It was sought by the defendant throughout the entire trial, as indicated by the testimony offered by him, to contradict and impeach the testimony of the state's witnesses, and evidently with that phase of the testimony in the mind of the court, he gave that instruction to the jury. The defendant, under the facts in this case, certainly could not have been prejudiced by that instruction. (3) The defendant complains that the court committed reversible error in failing to direct the attention of the jury to the fact of defendant's alleged flight. This might have been prejudicial error against the state, but how the defendant could have been prejudiced by the failure of the court to give this instruction, we do not understand; as a matter of fact, under the testimony in this case, such an instruction would have been unauthorized. The testimony as to the alleged flight was insufficient to support or authorize any such instruction. The case of State v. Moore, 101 Mo. 330 is inapplicable. (4) Nor did the court commit error in refusing to admit the testimony tending to show that Mack had committed the crime. The declarations of Mack or admissions of guilt would have been inadmissible. State v. Hack, 118 Mo. 99. (5) It does not appear from the record, or the affidavit filed in support of the motion for new trial, that any objections were made to the remarks of counsel, or that any exceptions were taken and saved at the time they occurred; hence, these alleged errors will not be considered here. State v. Wilson, 117 Mo. 583.
At the December term, 1894, of the Cole county circuit court, the grand jury preferred the following indictment against Al Johnson:
"The grand jurors for the state of Missouri, summoned from the body of the county of Cole, now here in court duly empaneled, charged and sworn to inquire within and for the county of Cole in the state of Missouri, upon their oath do present and charge that Al Johnson, late of the county aforesaid, at and in the county aforesaid, on the thirteenth day of November, 1893, in and upon the body of one Samuel Stephens, feloniously, on purpose, and of his malice aforethought, did make an assault, and did then and there feloniously, on purpose, and of his malice aforethought, with a certain knife which he, the said Al Johnson, in his right hand then and there had and held, cut and stab him, the said Samuel Stephens, in and upon the hand, head, arm and ear of him, the said Samuel Stephens, with intent the said Samuel Stephens feloniously, on purpose, and of his malice aforethought to kill and murder, against the peace and dignity of the state of Missouri."
He was duly arraigned, tried and...
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