106 Mo. 182 | Mo. | 1891
Defendant was indicted in the Ozark circuit court for wilfully and maliciously killing a
I. The first contention, for a reversal of the judgment is, that there was no evidence whatever that the offense was committed in Ozark county. It appears from the record that James A. Baker, who owned the mule that was killed, lived in Bakersfield, Ozark county, Missouri, and that defendant lived about three miles from Bakersfield “just over the line” in Howell county; how far from the line does not appear. The mulé came home and died in a few hours, having been shot in the right side with small shot. The court instructed the jury that they should acquit the defendant, unless they found beyond a reasonable doubt, that he shot the mule in Ozark county. The only question for us, therefore, to determine, was there sufficient evidence to go to the jury as to the venue ? “Proof of the venue as laid’ in the indictment, like any other material allegation, needs not be established by express and positive testimony, but it is sufficient if the circumstances in evidence tend to the conclusion in a manner satisfactory to the jury, that the place of the crime corresponds with that set forth in the indictment. State v. McGinniss, 74 Mo. 245, and cases cited ; Commonwealth v. Costley, 118 Mass. 1 ; Beavers v. State, 58 Ind. 530.
There was no evidence whatever as to where the mule was when he was shot, but when the wounds on him were first seen he was in Ozark county, and he died in that county. That was his habitat and we think it was a question for the jury from all the circumstances to say whether the mule was shot in that county or not.
II. The second contention is that the court erred in refusing to sustain a demurrer to the evidence on the ground, that the proof showed that the offense was barred by the statute of limitations. The offense was committed in the fall of 1882, and the indictment on
But the record, sent up by the clerk, contains an indictment presented and filed April 18, 1883.. The record also shows that on April 11, 1888, defendant filed his motion to quash this indictment. On April 13, 1888, the grand jury returned a second bill for the same .offense. The case was then continued to the October term. On the second day of the October term, defendant filed a motion to quash the indictment, and, on the third day of that term, the grand jury returned the third bill of indictment against defendant for the same offense, and on the fourth day of the term the motion to quash the indictment filed at the April term was sustained. The record does not show what disposition was made of the motion to quash the first indictment, but this is immaterial as the effect of the second indictment was- to quash the first. R. S. 1879, sec. 1808; State v. Vincent, 91 Mo. 662.
The first indictment and the subsequent orders of the court in reference thereto were not offered and read in evidence. Are they 'then in the record proper so that we may consider them in the determination of the case? We think they are. The filing of the second
After the jury had retired to consider of their verdict, they returned into court and reported that they could not agree, whereupon the court stated to them orally, “that if it was about the punishment they could not agree, to return a verdict and the court would fix that matter.” The defendant saved his exceptions to this action of the court, and now urges it as reversible error. This could not, however, have operated to the prejudice of defendant for the reason that the jury did not follow this instruction of the court, but returned a verdict fixing not only defendant’s guilt but his punishment also. It is insisted in this connection that the jury might very
is affirmed.