The State v. Sacre

• Decision Date: 17 July 1897
• Parties: The State v. Sacre, Appellant
• Court: Missouri Supreme Court

41 S.W. 905

141 Mo. 64

The State v. Sacre, Appellant

Supreme Court of Missouri, Second Division

July 17, 1897

Appeal from Callaway Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

I. W Boulware and N. D. Thurmond for appellant.

(1) The instruction given by the court on motion of the State defining a "reasonable doubt" is erroneous and illegal. This instruction is misleading. The same implies that the doubt must be such a one as is alone created and produced by the evidence. It includes all reasonable doubt that may arise from a lack or want of evidence. By this instruction the burden was cast upon defendant, while it devolved upon the State to show his guilt beyond a reasonable doubt. The giving of said instruction is clearly reversible error. State v. Blue, 136 Mo. 41; State v Bobbst, 131 Mo. 328; State v. Nueslein, 25 Mo 111; State v. Wells, 111 Mo. 533. (2) "The court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict, which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt; and a failure to so instruct in cases of felony shall be good cause, when the defendant is found guilty, for setting aside the verdict of the jury and granting a new trial." Laws of Missouri 1895, p. 161. (3) The motion for a new trial should have been sustained on the ground of newly discovered evidence. The affidavits accompanying the motion showed that the prosecutor, Muir, had hired or bribed witnesses whose evidence was material and most damaging to the defendant. Affidavits further showed that other witnesses who knew material facts were not sworn as witnesses. That defendant did not know what these witnesses knew or would testify until after the trial. That defendant was guilty of no laches or want of diligence. State v. Murray, 91 Mo. 95; State v. Alexander, 66 Mo. 148; State v. Lee, 66 Mo. 165; Campbell v. People, 16 Ill. 17; State v. Sloan, 47 Mo. 604; Stokes v. People, 53 N.Y. 164. (4) The verdict is against the evidence and weight of evidence -- so clearly so that the court should not let it stand.

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

(1) The instruction on the question of reasonable doubt has met universal sanction by the courts of this State. Ten instructions were given at the instance of defendant which were exceedingly liberal to him and presented the whole case to the jury, leaving no ground for complaint. (2) The evidence in this case was ample and sufficient to warrant and support the verdict found by the jury. Such being the case, this court will not undertake to invade the province of the jury and weigh the testimony or determine the questions of fact suggested in evidence. State v. Banks, 118 Mo. 117; State v. Green, 117 Mo. 298; State v. Pettit, 119 Mo. 440. (3) Defendant was not entitled to a new trial on the grounds of newly discovered evidence. The evidence would only effect the credibility of the witnesses. State v. Welsor, 117 Mo. 582; State v. Rockett, 87 Mo. 666; State v. Butler, 67 Mo. 63. (4) The indictment is sufficient. State v. Keele, 105 Mo. 40; State v. Johnson, 129 Mo. 29.

OPINION

Sherwood, J.

For felonious assault on his brother-in-law, Wm. E. Muir, by shooting him with a pistol, defendant was convicted, his punishment assessed at two years in the penitentiary, and hence his appeal to this court.

1. The court gave a "power" of instructions, eighteen in all, eight for the State and ten for defendant, and refused to give the latter three instructions.

Among those given on behalf of the State occurs this one:

"6. The court instructs the jury that if they entertain a reasonable doubt as to the guilt or innocence of defendant, they should acquit, but a doubt to authorize an acquittal must be a substantial doubt arising out of a due consideration of all the testimony, and not a mere possibility of the defendant's innocence."

In State v. Blunt, 91 Mo. 503, 4 S.W. 394, a case of conviction of murder in the first degree, an instruction in these words was not disapproved: "To authorize an acquittal on the ground of reasonable doubt alone, such doubt should be a real, substantial, well-founded doubt arising out of the evidence in the cause, and not a mere possibility that the defendant is innocent."

The instruction in the case before us is better worded than the one just mentioned. The instruction commented on in State v. Blue, 136 Mo. 41, 37 S.W. 796, differs widely from the one in the case at bar, as will readily be seen on comparison.

The proper form of instruction to be given on the point under review is this: "If you have a reasonable doubt of defendant's guilt, you should acquit; but a doubt, to authorize an acquittal on that ground, ought to be a substantial doubt touching defendant's guilt, and not a mere possibility of his innocence." State v. Nueslein, 25 Mo. 111. This instruction has never met with disapproval since that time. Instead of that it has met and sustained every test to which it has been put. Since then, however, the prosecuting attorneys of this State, not content to tread in the ancient ways of the law, have frequently been making experiments on this subject, and have "sought out many inventions," and their seeking in this regard has often resulted in a reversal of judgments obtained by the State.

In the quite recent...