76 Mo. 562 | Mo. | 1882
Under the provisions of section 1859, E. S. 1879, the truth of the allegations of a petition for a change of venue must. be “ proved to the satisfaction of the court by legal and competent evidence.” Affidavits, therefore, do not meet this requirement of the statute. But the court erred in refusing to permit defendant to support the allegations of his petition by calling bystanders from the audience in the court room to testify orally touching the truth of such allegations.
II.
The fourth instruction given at the instance of the State, was as follows: “ If Bohanan killed Light with a pistol or revolver, by shooting him, the law presumes it is murder, in the absence • of proof to the contrary, and it devolves upon the defendant to show from the evidence that he was guilty of a less crime or acted in self-defense.” It is scarcely necessary to say the instruction is grossly er roneous. By it all elements of malice, of intention, of premeditation and of deliberation were wholly excluded from the consideration of the jury. All that this instruction required the jury to believe from the evidence was that “ Bohanan killed Light with a pistol,” and so believing, to find defendant guilty of murder as a matter of course, and as a necessary consequence. We are not prepared to make such an innovation on the criminal law of this State, as the sanctioning of this instruction would require. We reverse the judgment and remand the cause.
