78 Mo. 470 | Mo. | 1883
The defendant, George W. Leeper, was indicted for selling liquor as a dramshop keeper on Sunday. The evidence fully sustained the charge. Defendant was found guilty and brings the case here on appeal. He complains of the following instructions given by the court of its own motion:
1. If the jury are satisfied from the evidence in the case, that defendant did, in Wayne county, State of Missouri, at any time within one year next before finding the indictment in this case, on the first day of the week, commonly called Sunday, sell any of the liquors described in the indictment, they ought to find him guilty, and assess his punishment to a fine of not more than $50.
2. Before the jury convict the defendant they ought to be satisfied, beyond a reasonable doubt, that the defend
The first instruction is in common form and unobjectionable. -
The criticism made by counsel on the second instruction is, that the court erred in directing the jury to acquit in case of a “ reasonable doubt,” without in explanation adding that “ such doubt ought to be a substantial doubt touching the prisoner’s guilt, and not a mere possibility of his innocence.” In support of this somewhat novel position, for a defendant at least, we are referred to the case of State v. Heed, 57 Mo. 252. The syllabus would seem to justify the assumption of counsel, but an examination of the case will not. The first instruction given for the State is substantially the same as the one in question; and if there had been nothing more in the case there would have been no error. The vice was in the second instruction given for the State, in which the jury were told they could not acquit on “ a mere possible doubt.” Wagner, J., says: “ It should have been followed by a more precise and accurate explanation of the terms, so as to have prevented misapprehension, as was done in the case of State v. Nueslein, 25 Mo. 111.” Evidently this criticism referred to the second instruction, and not to the first. When the court undertook in that case to define what reasonable doubt was, it should have conformed to the principle laid down in the Nueslein case, instead of saying, as it in effect did, that it was not a mere possible doubt.. There is nothing in the Nueslein case to support the idea that it is error to instruct the jury, that before they can convict, they must be satisfied beyond a reasonable doubt, of defendant’s guilt. Such is the recognized rule in criminal practice. Its use in the form employed by the court in the case under review, is almost canonized. It has never been manifest to my mind that it is so liable to misunderstanding or confusion as the
The indictment, under the authority of the decision in State v. Nations, 75 Mo. 53, is good.
Finding no error in the record, the judgment of the circuit court is affirmed.