State v. Hill, 134 Mo. 663

State v. Hill

134 Mo. 663 | Mo. | 1896

Sherwood, J.

1. Taking all the testimony of Lee Pierce together, I am unable to discover any serious objection to it, certainly not any reversible error in *672its admission. Defendant was not under arrest or laboring under restraint. He introduced the conversation himself, and seemed eager- to have his fondest wishes confirmed, that he was indeed father of the child. Laboring under no restraint, he was at perfect liberty to have denied that he was the child’s father. Instead, however, of denying the chai’ge that he evidently had sought should be made, he interposed no denial, but only “hinder laughed.”

The manner, the demeanor of a party when accused of crime, as well as his silence in such circumstances, when if not guilty, truth born of indignant innocence would naturally impel him to speak, are always fit subjects to be brought before the jury as in-culpatory circumstances, of whose probative force the triers of the fact must judge. Rice’s- Crim. Ev., sec. 318; 1 Bishop, New Crim. Proc., sec. 1254; Whart., Crim. Evid. [9 Ed.], sec. 679; 1 Greenl., Evid. [14 Ed.], secs. 197, 215; Burrill, Circ. Evid. [3 Ed.J, 482, 483;' Pierce v. Qoldsberry, 35 Ind. 317; Puett v. Beard, 86 Ind. 104.

2. The evidence abundantly establishes, and in a variety of ways as heretofore seen, the fact that defendant was the father of the child. It is true he denies that its paternity should be cast upon him, but of this to the jury belonged the exclusive determination.

Now if the paternity of the child be established as that of defendant, his guilt becomes obvious, and a simple corollary of such paternity, provided the prose-cutrix were confided to his care as contemplated by the statute. In order for the jury correctly to determine-this fact, the manner in which it was instructed becomes all important. So that, in order to solve the question whether defendant was rightly convicted, depends on the correctness of the action of that court in. giving and refusing an instruction.

*673The correctness of the action of the trial court in this regard is, however, settled by the rulings of this court in the cases of State v. Sibley, 131 Mo. 519; State v. Kavanaugh, 133 Mo. 452.

Therefore judgment affirmed, in which affirmance, so far as concerns the last paragraph of the opinion, I do not concur.

GIantt, P. J., and Bubg-ess, J., concur.