98 Mo. 222 | Mo. | 1889
— It will not be necessary in this case to discuss the distinction drawn by some of the commentators on the common law between escape and breach of prison. Our statute undertakes to state definitely the facts constituting the offense charged here. The only question presented is whether defendant has been fairly tried and convicted under it. -
I. Objection was made to the indictment because it charged that defendant was in jail under the judgment and order of a particular court, without any allegation of that court’s jurisdiction to commit him. Where the jurisdiction of a court is defined by public statute, as in this instance, it is not necessary to state it in an indictment. “ No indictment shall be deemed invalid * * * for want of the averment of any matter not necessary to be proved.” R. S. 1879, sec. 1821. Facts of which the courts take judicial notice are of this character. Among others, the terms of a public law.
II. It was proper for the state to show the nature of the commitment of defendant to jail and the process under which it took place. • He was first committed on a warrant issued by a justice on a criminal charge, and, after examination, recommitted. He then was indicted in due course. After a mistrial he was remanded by the court to the custody of the sheriff. While thus committed he escaped. The gist of these facts is that he was in lawful custody at the time. The state was entitled to show that fact by any competent and relevant testimony. The records offered in evidence tended
, III. It was correct to permit the sheriff to testify to the identity of the defendant with the party originally committed. Identity of name tends to establish identity of person, but not being conclusive, it may be strengthened by other testimony of actual identity.
IV. There was no error in refusing to instruct that every material fact in the indictment must be established beyond a reasonable doubt. The court correctly instructed the jury to acquit if entertaining a reasonable doubt of defendants guilt on the whole evidence in the case. This was sufficient on that point, considering the repeated rulings of this court.
V. In view of defendant’s admissions regarding his escape it is unnecessary to consider the exceptions to some of the details of the testimony' ruled upon by the trial court. Under the statute governing this case, it was not material to prove the use of force on defendant’s part in effecting the escape. R. S. 1879, sec. 1455.
We find no error in the record. The judgment is, therefore, affirmed,
