State v. Sacre
41 S.W. 905
Mo.
1897
Check Treatment
Sherwood, J.

— For felonious assault on his brother-in-law, ¥m. E. Muir, by sh.oo.ting him with a pistol, defendant was convicted, his punishment *67assessed at two years in the penitentiary, and hence his appeal to this court.

1. The court gave a “poiver” of instructions, eighteen in all, eight for the State and ten for defendant, and refused to give the latter three instructions.

Among those given on behalf of the State occurs this one:

“6. The court instructs the jury that if they entertain a reasonable doubt as to the guilt or innocence of defendant, they should acquit, but a doubt to authorize an acquittal must be a substantial doubt arising out of a due consideration of all the testimony, and not a mere possibility of the defendant’s innocence.”

In State v. Blunt, 91 Mo. 503, a case of conviction of murder in the first degree, an instruction in these words was not disapproved: “To authorize an acquittal on the ground of reasonable doubt alone, such doubt should be a real, substantial, well-founded doubt arising out of the evidence in the cause, and not a mere possibility that the defendant is innocent.”

The instruction in the case before us is better worded than the one just mentioned. The instruction commented on in State v. Blue, 136 Mo. 41, differs widely from the one in the case at bar, as will readily be seen on comparison.

The proper form of instruction to be given on the point under review is this: “If you have a reasonable doubt of defendant’s guilt, you should acquit; but a doubt, to authorize an acquittal on that ground, ought to be a substantial doubt touching defendant’s guilt, and not a mere possibility of his innocence.” State v. Nueslein, 25 Mo. 111. This instructión has never met with disapproval since that time. Instead of that it has met and sustained every test to which it has been *68put. Since then, however, the prosecuting attorneys of this State, not content to tread in the ancient ways of the law, have frequently been making experiments on this subject, and have “sought out many inventions,’’ and their seeking in this regard h as often resulted in a reversal of judgments obtained by the State.

In the quite recent case of State v. Bobbst, 131 Mo. loc. cit. 339, the instruction on reasonable doubt as formulated in Nueslein’s case, was commended. So, also, in State v. Robinson, 117 Mo. loc. cit. 661, like approval was given to that instruction. That instruction, as remarked by Philips, C., has been “canonised.”

Among other instructions given at the instance of defendant was this one:

“10. The court instructs the jury that the indictment in this case is of itself a mere accusation or charge against the defendant, and is not of itself any evidence of the defendant’s guilt, and no juror should permit himself to be in any way influenced against the defendant because or on account of the indictment in this case; and you are further instructed that in this case the law does not require the defendant to prove his innocence, but the law requires the prosecution to prove that the defendant is guilty in manner and form as charged in the indictment beyond a reasonable doubt, and unless the State has done this, the law makes it your duty to find the defendant not guilty.” So that the jury could not have been misled on the subject of reasonable doubt.

The other instructions given on behalf of defendant were extremely favorable to defendant, and left nothing to b'e desired, and there was ample evidence to support the verdict.

2. We discover no merit in the point of newly discovered evidence.

*693. It has been urged that the court failed to instruct the jury on all questions of law, etc. If such failure occurred, advantage of it was not taken at. the time by excepting to such failure. Failing in this regard, it did no good to save the point in the motion for a new trial. State v. Cantlin, 118 Mo. 100, and other cases.

Judgment affirmed.

All concur.