193 Mo. 202 | Mo. | 1906
— On the 12th day of August, 1904, there was filed in the office of the clerk of the circuit court of Pulaski county, by the prosecuting attorney of said county, an information charging the defendant Finley with manslaughter in the first degree, in the killing, at said county, of one Ella Green, by administering to her certain drugs or medicine for the purpose of destroying pregnancy. At the September term, 1904, of said circuit court, the defendant was put upon his .trial, found guilty, and his punishment fixed at six years’ imprisonment in the penitentiary.. Defendant thereafter, in due time, filed motions for new trial and in arrest, both of which were overruled, to which ruling of the court he saved his exceptions, and brings the case to this court by appeal for review.
The State’s evidence tended to show that Ella Green was an unmarried woman, twenty-three years of age, and lived with her brother and stepmother on a farm in said county. Defendant lived at the same place and raised a crop on the same farm the year preceding the death of Ella Green. For three or four days prior to her death Ella Green was complaining, and claimed to her stepmother and others that she had had the measles. Her stepmother was old, very feeble and totally
On the part of the defendant, the evidence showed that he lived on and cultivated a part of the Davis farm, and that he had associated some with the deceased. He admitted procuring the two bottles of medicine from Dr. Harmon, and said that he did so at the request of deceased. Defendant said he brought the medicine to the deceased, but denied administering any
The court instructed the jury, in behalf of the State, as follows:
“1. The court instructs the jury that if you believe and find from the evidence that the defendant, in Pulaski county, Missouri, and on or about the 18th day of May, 1904, did willfully and feloniously administer to one Ella Green a certain medicine, drug and substance for the purpose of destroying the pregnancy of the said Ella Green, and if said medicine was so administered without intending necessary medical or surgical treat1 ment, and without intending any other injury than the destroying of pregnancy, and if the said medicine so administered by defendant to the said Ella Green, did at the time and place aforesaid kill the said Ella Green, you will find the defendant guilty of manslaughter in the first degree and assess his punishment at imprisonment in the State penitentiary for a term not less than five years.
“2. The term ‘willfully,’ as used in these instruc*209 tions, means intentionally and not by accident. ' The term ‘ feloniously, ’ means wickedly and against the admonition of the law; that is, wickedly and unlawfully.
“3. The defendant is a competent witness in his own behalf and his testimony should be considered by you in making up your verdict, but in determining what weight you will give to his testimony you may consider the fact that he is the defendant and on trial.
“4. You should consider all statements shown to have been made by the defendant with caution, on account of the fact of the liability of the witnesses to forget or misunderstand what was really said or intended.1
“5. The court instructs the jury that the word ‘ administered, ’ as used in these instructions, means the giving to the deceased any drug or substance in any quantity whatever for the purpose of producing an abortion.”
At the instance of defendant the court gave the following instructions:
“1. In order to convict it devolves upon the State to show and prove beyond a reasonable doubt: That on or about the time charged in the information Ella Green was a pregnant woman, and that the defendant in Pulaski county administered to her medicine for the purpose of destroying such pregnancy, and that he administered such medicine without intending any other, injury than the destruction of such pregnancy and without intending any necessary medical treatment; and unless-the State has proven these facts the defendant should be acquitted, and while they may be proven by.-circumstances, yet when the State seeks to establish any fact by circumstances, the circumstances must be consistent in themselves and with each other and wholly inconsistent with the innocence of the accused. And in this case, if the circumstances introduced in evidence can be explained upon any other reasonable theory than that of defendant’s guilt, you should find him not guilty.
*210 “2. The court instructs the jury that the law presumes the defendant to be innocent, and this presumption remains until the State, by evidence, establishes his guilt to your satisfaction and beyond a reasonable doubt; if, therefore, upon a full consideration of all the evidence, you have a reasonable doubt of defendant’s guilt, you should give him the benefit of such doubt and acquit him; but to authorize an acquittal on the ground of doubt alone it should be a reasonable doubt and not a mere possibility of his innocence.”
The defendant is not represented in this court, but in his motion for a new trial he assigned the following as reasons why the verdict should be set aside and a new trial granted:
“1. Because the court admitted illegal testimony on the part of the State and excluded competent and legal testimony on the part of the defendant in the trial of the cause.
“2. Because the court misdirected the jury in giving instructions on the part of the State which did not properly submit the cause to the jury and failing to properly instruct the jury on part of the défendant in material matters of law.
“3. Because the verdict is contrary to the law and the evidence.
“4. Because the court erred in overruling the defendant’s motion to dismiss the cause at the close of State’s testimony.
“5. Because the verdict is not supported by the evidence.
“6. Because the court failed to instruct the jury on all the law in the case.”
In the motion in arrest of judgment a point is made upon the sufficiency of the information, which is claimed to be invalid for the reasons specified in that motion. But neither the motion nor the ruling upon it is embraced in the bill of exceptions, and being matter of exception, could only be preserved that way. In a long
Tbe evidence was all admitted without objection, save in two instances, and in these tbe objections were general, no grounds therefor being stated. Unless, therefore, tbe evidence was not admissible for any purpose, no error was committed in admitting it, and we are not prepared to say tbat it was not admissible for tbe purposes for which it was offered.
The instructions fully and fairly presented tbe law of the case to the jury. But even though tbe instructions were objectionable, tbis court could not consider them, no objection having been made or exception saved at tbe time, and tbis could not be done for tbe first time in tbe motion for a new trial. [State v. Bayne, 88 Mo. 604; State v. Burk, 89 Mo. 635, and authorities cited.]
Tbe sixth ground of objection assigned in tbe motion for a new trial is tbe alleged failure of tbe court to instruct tbe jury upon all tbe law of tbe case. But it does not appear from tbe bill of exceptions tbat tbe defendant at any time requested tbe court to instruct upon all tbe law of tbe case, or tbat its attention was called to its failure to do so by tbe defendant, and tbe objection could not be raised for tbe first time in tbe motion for
As to the assertion in the motion for a new trial that the verdict is not supported by the evidence, it is scarcely necessary to say more than that the facts heretofore stated make a strong case against the defendant and point to his connection with and responsibility for the death of Ella Green. That he was responsible for her ruin and disgrace, in the first place, and that then, in order to hide her shame, he procured, by false statements and representations, the medicine which she took for the purpose of procuring an abortion, which abortion resulted in her death, there can be no question. And what, if possible, is worse still, and which shows the defendant to be destitute of the common feelings which stir humanity, is that when the girl called for him and he went into her room, where she was lying in the shadow of death, he locked the door behind him and let her die without notifying her aged stepmother, who was blind, and who did not learn of her daughter’s death until informed of the fact by other persons.
Defendant’s actions at the time of the girl’s death, his protesting against a post-mortem examination* his frequent voluntary assertions that she was not pregnant, but that she had died of the measles, when there was no evidence whatever that she had had such disease, tend strongly to show his consciousness of guilt; and these facts, taken in connection with all the other facts and circumstances adduced in evidence, prove his guilt beyond any question. The judgment should be affirmed. It is so ordered.