16 Mo. App. 213 | Mo. Ct. App. | 1884
delivered the opinion of the court.
The defendant was indicted under section 1262 of the Revised Statues for an assault with intent to kill, and was
1. We must reverse this judgment, because the charge of the court did not present the law to the jury in its application to all the hypotheses of fact presented by the evidence. By section 1655 of the Revised Statutes the defendant was entitled, if the jury should believe that the assault was not made with the intent to kill, to be acquitted of the felony, and convicted of a common assault under section 1265. But the court failed to instruct the jury that they were at liberty to do this. There was no evidence that the assault was made with a weapon which was necessarily deadly in its character; and though the prosecuting witness received a very severe blow, they might well have found, had they been instructed that they might, that there was no intent to kill. No instruction of this kind was requested ; but it is settled law in this state that the court is bound, in a criminal case, to instruct as to all the degrees of the crime charged of which there is any evidence tending to prove the defendant guilty. The State v. Banks, 73 Mo. 592 ; The State v. Branstetter, 65 Mo. 149.
2. The only defence was an alibi, and the testimony of four witnesses tended to make this defence good. With reference to this defence the defendant asked the court to instruct the jury that “ if, from the evidence in the case, they have a reasonable doubt whether the defendant was present at the time and place of the commission of the offence charged in the indictment they should find the defendant not guilty.” This instruction the court refused to give. This ruling calls up a question which has been once before the supreme court, and twice before this court. In The State v. Lewis (69 Mo. 92), the only defence, as here, was an alibi. The court was asked to give the following instruction : “ The jury are instructed, if they have a reasonable doubt that the defendant committed the homicide alleged in the indictment, or was absent at the time said homicide
But in the present case the court called the attention of the jury to the defence of alibi in the following language: “ If from the evidence you believe and find that this defendant was not present at the time of the alleged assaulting, striking, cutting, and wounding of James M. Gray referred to in the indictment, but that he was elsewhere, at another place, then he can not under such circumstances be guilty as by the indictment he stands charged, and then in such case you should acquit the defendant.” This instruction seems to embody the idea that the defence of alibi is a
For the error of failing to instruct the jury that they might acquit of a common assault, of refusing the defendant’s instruction touching the doctrine of reasonable doubt in its application to the defence of alibi, and of instructing the jury to the effect that they must believe and find this defence to be true, we reverse the judgment and remand the cause. It is so ordered,