State v. Horn , 115 Mo. 416 ( 1893 )

Burgkess, J.

At the October term, 1889, of the circuit court of Howell county the defendant was indicted for felonious assault committed on one John L. Matthews by stabbing him with a knife. At the July term, 1891, defendant made an application for a change of venue on account of prejudice of the inhabitants of Howell, Ozark and Douglass counties, which was granted by the court and the venue was changed to Oregon county. At the February term, 1892, of the Oregon circuit court the defendant was convicted and his punishment assessed at a fine of $100 and three months’ imprisonment in the county jail. Defendant then filed motions for new trial and in arrest, which being overruled, he appealed to this court.

The evidence tends to sustain the charges in the indictment as well also as that defendant acted in self-defense. There is no question saved in the motion for a new trial as to the admission or exclusion of evidence.

No brief has been filed on the part of defendant. The case was presented to the jury in a carefully and well prepared' set of instructions, no objection the'reto being suggested in the motion for a new trial except a general one, and we have been unable to discover any after a very careful investigation of them. They were certainly very favorable to the defendant, and embraced every phase of the case suggested by the evidence. As no exception is raised in the motion for a new trial in regard to the admission or exclusion of evidence, the action of the court in that regard cannot be reviewed here. State v. Musick, 101 Mo. 260; State v. McDaniel, 94 Mo. 301; State v. Welsor, 21 S. W. Rep. 443.

Exception, however, is taken in the motion for new trial to the failure of the court to instruct the jury as to the attempted impeachment by the state for truth and veracity of several witnesses who testified on the part of defendant. While by section 4208, Revised Statutes, 1889, it is made, the duty of the trial court to instruct the jury in writing upon on all questions of law arising in the case which are necessary for their information in giving their verdict, and failure to do so when a defendant has been found guilty shall be good cause for setting aside the verdict, the court is not bound to instruct in regard to matters that are not pertinent to the issue involved. Not only this, but the court did instruct the jury that they were the.' judges of the evidence and the weight thoreof, and the credit to be given to the testimony of each witness, and that if the jury believed any witness had sworn willfully falsely in regard to any material fact in issue, they should disregard such false statement, and might disregard the whole of such witness’s testimony. Certainly this instruction meets the objection urged by the defendant, and this point must also be ruled •adversely to him.

The record shows that defendant was fairly tried and the verdict of the jury is fully sustained by the evidence, and perceiving no cause for interfering with the judgment it is hereby affirmed,

in which all concur.