248 Mo. 708 | Mo. | 1913
Defendant testified that a few minutes after Lewis and wife left, he got breakfast and left, and that the two children were the only ones left at home. He testified that he went to Florissant and spent the whole day with John Pope in the shed near a saloon, can-ning’ beer, playing cards and shooting craps, occasionally going into the saloon for beer. He stated on the stand that he went back to Lewis’s- about six-thirty or seven o’clock and that Lewis was then at home.
The stenographer’s notes of his evidence on a previous trial were read in evidence showing that he said on the former trial that he left the saloon about three-thirty in the afternoon.
The prosecutrix testified to facts indicating that defendant ravished her forcibly and against her will. She was not able to tell at what time in the day it occurred. She said nothing to anyone until about September 24th, when it developed that she was horribly afflicted with gonorrhoea, as shown by the evidence of the physician who examined her, and of others. She then told that the defendant had mistreated-her.
Defendant continued to sleep at Lewis’s until he was arrested. On the first trial defendant was convicted, but the verdict was set aside for some error in the proceedings. Defendant testified that he left the saloon in the evening in company with John' Pope, John Lewis, Bud Cordell and Tucker Creen. None of them testified.
There was no evidence as to whether the defendant had a venereal disease.
The mother of the prosecutrix was present at the trial, but was not put on the witness stand by the State, nor were the three uncles of prosecutrix. The grandmother was dead at the time of the trial.
The court did not instruct on the subject of an alibi, but with that exception it instructed on all the law of the case, including the subjects of the presumption of innocence, reasonable doubt and good character. By an instruction, reasonable doubt was defined as follows:
“Reasonable doubt as used in these instructions, to entitle the defendant to an acquittal on that ground, means a substantial doubt arising in your minds upon careful consideration of all the facts and circumstances proven in the case and not a mere possibility of the defendant’s innocence.”
' The court also gave this instruction:
“The mere fact that the said Rita Washington was in a physical condition that indicated that she had been criminally assaulted, if you so find, from the evidence, is not itself sufficient to warrant you in finding that such condition was the result of an assault upon her by the defendant, and the burden of proving that the assault was made upon her by the .defendant is upon the State and such proof must be made to your satisfaction beyond a reasonable doubt, as heretofore in these instructions defined.”
Among the instructions was the standard one as to the credibility of the witnesses, which did not call attention to any particular witness.
The trial court’s attention was not called to the question of an instruction on an alibi either at the trial or in the motion for a new trial.
“The mere fact that the said Rita Washington was criminally assaulted, if you so find from the evidence, is not of itself sufficient to warrant you in finding that her condition was the result of an assault upon her by the defendant, and the burden of proving that the assault was made upon her by the defendant is upon the State and such proof must be made to your satisfaction beyond a reasonable doubt, as heretofore in these instructions defined, then you are bound to presume that the said Rita’s condition w'as from other source or cause, no matter whether the evidence shows what the source or cause was or not.”
“The defendant’s, guilt must be established beyond a reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists, that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt, unless he be so convinced by the evidence, no matter what the class of evidence, of the defendant’s guilt, that a prudent man would feel safe .to act upon that conviction in matters of the highest concern and importance to his own dearest personal interest.”
The instruction in the form given in this case was approved by Gantt, J., in State v. Nerzinger, 220 Mo. l. c. 49, as follows: “As said in State v. Leeper, 78 Mo. 470, its use in this form is almost canonized, and this court has often admonished the circuit courts that it is better to adhere to instructions that have received the approval of this court and not attempt definitions which add nothing to the meaning of well understood terms.”
It is not reversible error to give or refuse such a definition. The instruction on reasonable doubt asked by the defendant and refused by the court was properly refused. We can clearly understand the first sentence in it, viz.: “The defendant’s guilt must be established beyond a reasonable doubt.” The remainder of the instruction is unintelligible to us.
PEE CTJEIAM. — The' foregoing opinion of Roy, C., was modified by the court and as modified is adopted as the opinion of the court.