75 Mo. 355 | Mo. | 1882
The error committed by the court was not cured by an instruction given at the instance of defendant: “ That although the jury may believe from the evidence that the defendant did break jail while confined on this charge, yet if they did not believe that he did it from a motive to flee and avoid a trial on this charge, they should not consider it as an element in making up their verdict as to defendant’s guilt or innocence.” That would have been a Proper instruction if defendant’s testimony on that subject had been received, but having virtually withdrawn it from the jury, the defendant could have-derived no benefit from the instruction.
We have noticed all the alleged errors except that in relation to alleged misconduct of the prosecuting attorney. The following statement in his address to the jury is •complained of: “ Their theory is that a soberer man than Mallon or Brown got the money, but you are not to guess at this matter. There is no evidence that the money was
Nor was the other remark attributed to the prosecuting attorney so far out of the way of professional propriety, as to justify this court in interfering with the verdict. It was to the effect that there is no security for the lives or property of citizens if juries fail to do their duty, while crime is so greatly on the increase. There was nothing in that observation that could have prejudiced the defendant. It was but the declaration of a duty of juries, everywhere recognized, and the statement of the fact that crime was on the increase could certainly have been no inducement to the jury to convict the defendant, if the evidence did not warrant his conviction. Por the error above indicated, the judgment 'is reversed and the cause remanded.