State v. Breeden

58 Mo. 507 | Mo. | 1875

Sherwood, Judge,

delivered the opinion of tbe court.

The defendant was indicted under the provisions of "Wagn. Stat., § 9, p. 500, for defiling his ward. The indictment contained words sufficiently descriptive of the offense, and charged that the act was feloniously done,, and is therefore not open to the objections urged against it. The case of the State vs. Feaster, (25 Mo., 325) is not in point, but widely distinguishable from the present one; for there tbe act, which constituted tbe offense, was not charged to have been feloniously done, but only that tbe assault was feloniously made.

The instructions given by tbe court on its own motion presented tbe matter with great fairness to tbe jury, so tliat no room for complaint exists on this score, although instructions asked by the defendant were refused. And the court was clearly in tbe right in refusing any instruction, which was a mere commentary on a portion of tlie evidence, and sought to direct tbe special attention of the jury to tbe consideration of a particular part of tbe testimony of the prosecutrix, as evincive of tbe contradictory nature of ber story respecting tbe entry in tbe family bible in reference to tbe date of her birth.

Tlie improbabilities in the testimony of witnesses, or their eontradictoiy statements, are matters for the consideration of the j ury in making up their verdict. There was a tendency in the evidence to support the verdict, and what weight should be given to it, was to be determined alone by the triers of the fact; and we will not intrude upon their province in this regard.

But there was unquestionably error in the refusal to admit testimony as to the moral character of the prosecuting witness. The better opinion now is, that, in order to discredit a witness, the inquiry need not be confined to his veracity-alone, but may be properly extended to his general moral character. (State vs. Shields, 13 Mo., 236; Id., 422.) And there was also error in refusing defendant permission to adduce evidence to show that any witness or witnesses had formed a conspiracy against defendant, or had in any manner exhibited feelings of hostility against him. The spirit which animates a witness is always a proper subject for inquiry, in order that the jury may place a proper estimate upon the value and importance of his testimony.

For these errors in relation to the evidence, the judgment must be reversed and the cause remanded;

Judge Vories absent; the other judges concur.