118 Mo. 100 | Mo. | 1893
I. The defendants are not represented in this court; but in the motion for a new trial
One .of the grounds of the motion is, that there is no evidence to support the verdict of the jury. The record itself contradicts this assertion; there is evidence to support the verdict. As. to whether the jury should have believed the defendants rather than Dougherty, was a question solely for the jury. If the testimony of Dougherty had transcended all bounds of human probability, or if he had stated facts physically impossible, then such a ground as is now urged might be tenable; but this is not the case. And if his testimony was contradicted by several witnesses, or was ■ improbable, still within the bounds before mentioned, we cannot usurp the province of the triers of the facts, ■ as we have again and again decided. State v. Breeden, 58 Mo. 507; State v. Moxley, 115 Mo. 644; State v. Orrick, 106 Mo. 111.
The like line of remarks applies to the testimony of Annie Bogans. And while on this point it may not be improper to observe that in the affidavit made by John Schmidt, the keeper of a grocery store under the Farrington boarding house, and which affidavit was filed in support of the motion for a new trial made by Hendricks, it appears that the affiant at the time the alleged robbery, occurred, while in his store heard Dougherty halloo, “murder!” “police!” “help!” and, on looking up at the window on the Eighth street side, andón the second floor, saw Dougherty with his head out of the window, and looking over across the street saw Hendricks walking quietly along; and upon this showing, Hendricks was granted a new trial; and, thereupon, a nolle pros was entered as to him. If John Schmidt, in his own store on the ground floor, could see Dougherty with his head out of the second story Eighth street window, it would not seem difficult for Annie Bogans,
II. The instructions given by the court seem fairly to cover the issue joined between the state and the defendants, and if they did not, there is no statement in -the motion that the court failed to give all proper and needful instructions. So that, if the court did fail to instruct the jury upon all questions of law arising in the case which were necessary for the information of the jury in giving their verdict, exception should have been saved at the time such failure occ%irred, and the point should have been preserved in the motion for a new trial, and this for the reason that exceptions in criminal causes occupy the same footing ás do those in civil matters, and can only be preserved by the same methods of procedure. State v. DeMosse, 98 Mo. loc. cit. 344; State v. Foster, 115 Mo. 448.
III. As to the word “feloniously” being used in the second instruction given at the instance of the state without defining the meaning of the term, it suffices to say that, under State v. Scott, 109 Mo. 226, such process of definition was unnecessary. Besides, the other instructions given, set out very plainly all the constituent elements of the- crime charged, and so there was no opportunity for the jury to be misled.
IY. The instructions asked by defendants seem to be covered by those given; but, if not, it is not requisite that the trial court should single out a certain fact and base instructions on that.
Y. On the part of two of the defendants, Shad-wick and Mooney, the- ground of. newly-discovered evidence was suggested in the motion for a new trial and' supported by the affidavit of Mrs. Earrington. Her
