State v. SivilsState v. Sivils
- Reporters:
- Before:
- MacFarlane
Defendant was tried and convicted of arson. The indictment contained four counts. The first charges one, Thomas Pearson, with arson in *533the second degree (under R. S. 1879, sec. 1286), by burning a building, the property of E. C. Steele, E. J. Pope and James Tate, containing certain county rеcords. The defendant Sivils is in this count charged with being wilfully present and aiding and abetting said arson. Thе second count of the indictment sets out the same offense as the first count against Thomas Pearson, and charges defendant Sivils with being an accessory before the faсt. The third count charges said Thomas Pearson with arson in the. third degree (under R. S. 1879, sec. 1287 ), and that dеfendant Sivils was present, aiding and abetting the same. The fourth count sets out the same offеnse of arson in the third degree (under R. S. 1879, sec. 1287), and charges defendant Sivils with being an accessory before the fact.
The verdict was as follows: “We, the jury, find the defendant guilty in manner and form as charged in the indictment, and assess his punishment at imprisonment in the penitentiary for five years.”
I. The evidence was not preserved in the bill of exceptions, and its sufficiency сannot be considered. It must, therefore, be assumed that the evidence tended to prove the facts upon which the instructions were hypothecated, and that it was sufficiеnt to justify the verdict. If the facts to be found by the jury, under the instructions, did not warrant the conclusions оf law to be deduced therefrom, then the instructions were improper. State v. Brown, 75 Mo. 317 ; State v. Mallon, 75 Mo. 355; State v. Burk, 89 Mo. 635.
The court gave to the jury the following instructions: “10. The court instructs the jury that, if they believe from the evidence that Sig. Sivils, after his arrest for the crime charged in this indictment, tried to induce the guard to permit him to escape, such attempt to induce the guard to permit him to escape raises a strong presumption of his guilt, which circumstances, if so px’oven, it devolves upon the defendant to explain, and, unless explained to your satisfaction, you will consider *534this fact, in connection with all the other facts and circumstances in evidence, in determining thе guilt or innocence of the defendant.
“11. The court instructs the jury that, if they believe from the evidence that the defendant, at any time, tried to procure any witness or witnesses to swear or testify falsely for him on the trial of this cause, or tried to get any person to ascertain where the indictment or bond was, for the purpose of destroying or making away with thе same, such facts, if proven, are strong presumptions to guilt, which it devolves upon the dеfendant to explain upon a theory consistent with Jiis innocence.”
In criminal casеs the duty is imposed upon the court to instruct the jury, in writing, upon all questions of law arising in the case which are necessary for their information in giving their verdict, but the right to comment upon the еvidence is expressly denied them; R. S. 1879, secs. 1908. 1920.
We think the foregoing instructions and others given, which have not been copied, are clearly commentaries upon the evidenсe and in violation of the positive provisions of the statutes above quoted. The еvidence, upon which these instructions were hypothecated, was properly admissible as circumstances from which guilt might be inferred, but the inference should be drawn by the jury, without aid оr suggestion from the court. The court should determine the admissibility of the evidence, and the jury its weight and effect. “Where the law fixes the weight or effect of evidence, there is no imрropriety in the court declaring it to the jury;, but, when one fact or piece of evidеnce is merely used to show the existence of another fact which is to be found by the jury, the court cannot, by way of instruction, direct the jury that the inference is warranted. If it is so, the law presumes the juries more competent to draw it than the judge, our law will not allow the judge even to comment on 1he evidence when the jury may give what weight they please tо the comment.” Chouquette *535v. Barada, 28 Mo. 491. “ For a court to single out certain testimony in a cause, and tell the jury that it is entitled to great or little weight, is contrary to the statutory provisions on the subject.” State v. Hundley, 46 Mo. 414; Fine v. Public Schools, 39 Mo. 67 ; Rose v. Spies, 44 Mo. 21; State v. Smith, 53 Mo. 267; State v. Harris, 59 Mo. 556 ; State v. Bell, 70 Mo. 633.
II. The verdict is sufficient to support the judgment. Defendant was charged in the indictment with arson in the seсond and third degrees. The verdict was authorized under the counts for arson in the third degree. Dеfendant was not convicted of a degree of the offense inferior to that alleged in the indictment, and it was not necessary to specify in the verdict the degree of arson of which the jury found him guilty. R. S. 1879, secs. 1927, 1291 ; State v. Pitts, 58 Mo. 558; State v. Matrassey, 47 Mo. 296; State v. Steptoe, 65 Mo. 640. Reversed and remanded.
All concur.