State v. Mitchell

98 Mo. 657 | Mo. | 1889

Barclay, J.

— If the action of the court, overruling defendant’s application for continuance, was proper, it is immaterial whether the reasons that induced the making of that order were sound or not. A correct ruling is not vitiated by reason of any erroneous views of the court in making it. The consent of the prosecuting attorney, in the present case, that the defendant might read the statement in the affidavit in lieu of the testimony of the absent witness, could not make the application better than it was without such admission.

The affidavit did not state the name of the witness or satisfactorily show ordinary diligence to obtain it. The evidence, to secure which delay was asked, could have no relevancy to any defense except insanity, and the application did not,show that that defense was contemplated. In this regard it nearly resembles the application in State v. Pagels, 92 Mo. 300, which this court held insufficient. In that case, too, the transcript shows the same admission (under section 1886, Revised Statutes, 1879) by the prosecuting attorney as appears in this record.

This case and that last cited are, therefore, clearly distinguishable from those in which this court has ruled the denial of a continuance to be error. Those decisions, should be read in the light of the fact that the applications therein were held sufficient in law to require the postponement asked.

In the case before us the application was wholly insufficient. No error was committed in denying it.

II. The instructions given by the court presented the law touching murder in the first and second degrees so fully that no objection was made in the motion for new trial to their correctness or completeness. The only complaint respecting the instructions is of the refusal of two, asked by defendant.

The first of these told the jury that “where the intent was not to take life, but only to do great bodily harm, it is murder in the second degree if death, results,”

On this point the instruction given by the court was as follows: “7. According to the evidence, as adduced in this case, if you fail to find that the defendant intended to kill the deceased at the time he shot at him and wounded him, you will find him, the defendant, not guilty.”

This was certainly more favorable to defendant than his own refused request. If there was error in the court’s statement of the law, it was in favor of, not against the defendant. His counsel have made a very ingenious argument, endeavoring to show that the effect of such action by the court was to leave the accused in worse position than if the instruction had presented the law less favorably for him than it did.' This argument, however, is met by the plain terms of the statute to the effect that no criminal proceedings shall be, in any manner, invalidated or affected “for any error committed at the instance, or in favor of the defendant.” (R. S. 1879, sec. 1821.)

III. The second of defendant’s ref used instructions is a copy of part of the syllabus in State v. O’Hara, 92 Mo. 59. It declares that “ murder in the second degree embraces all cases of murder at common law in which there was no specific intent to kill but in which the law presumes an intent to kill and which are not made manslaughter or murder in the first degree by statute.”

It is clear that such an abstract statement of the law should not be given as an instruction. What was murder at common law and what cases were manslaughter by statute could not properly be thus left to' the .jury. Instructions should not submit legal questions to the triers of fact. • Such a declaration of law as that under review would befog, not enlighten the jury. The court correctly refused it.

IV. Some question has been made, in the able brief for appellant, regarding the admissibility of certain testimony given in the trial court. But as the motion for new trial does not assign any rulings on evidence as error, we cannot properly consider them here.

Y. We have not been able to discover, nor has there been called to our notice any insufficiency or error in the indictment or in any of the proceedings in the cause.

The defendant appears to have been fairly tried. It is our duty to affirm the j udgment. It is accordingly done,

Sherwood and Black, JJ., concurring in this opinion. Brace, J., dissents in regard to the ruling on the application for continuance and concurs on the other points. Ray, C. J., absent.