State v. Adair , 160 Mo. 391 ( 1901 )

SHERWOOD, P. J.

The verdict of the jury found defendant guilty of robbery in the first degree, and assessed his punishment at five years in the penitentiary7.

The instructions given by the court were as follows:

“1. The court instructs the jury that if they find and believe from the evidence that the defendant James Adair, at the county of Jackson and State of Missouri, at any time within three years next before the seventeenth day of April, 1900, did unlawfully and feloniously make an assault upon the witness, Bessie-Proctor, and did by force and violence to her person in her presence and against her will and without any honest claim to the same with the felonious intent to deprive the owner of her property therein and convert the same to his own use, unlawfully and feloniously take from the witness, Bessie Proctor, any of the property mentioned in the indictment, of any value whatever, the property of .the witness, Bessie Proctor, you will find the defendant guilty of robbery in the first degree and assess his punishment at imprisonment in the State penitentiary for any time not less thañ five years.

“ ‘Feloniously,’ as used in these instructions, means wickedly and against the admonition of the law; unlawfully.

“2. The court instructs the jury, that the .defendant is a competent witness in this case, and you must consider his testimony in arriving at your verdict, but in determining what weight and credibility you will give to his testimony in making up your verdict, you may take into consideration, as affecting his credibility, his interest in the result of the case, and that he is the accused party on trial testifying in -his own behalf.

“3. The court instructs the jury that before they can convict the defendant, they must be satisfied of his guilt beyond a reasonable doubt; such doubt to authorize an acquittal upon reasonable doubt must be a substantial doubt of the defendant’s guilt, with a view to all the evidence in the case, and not a mere possibility of the defendant’s innocence.

“4. The court instructs the jury that if there is any evideuce before you that raises in your minds a reasonable doubt as to the presence of the defendant at the time and place where the crime is charged to have been committed, you will acquit the defendant.

“5. The jury are the sole judges of the credibility of the witnesses and of the weight and value to be given to their testimony.

“In determining as to the credit you will give to a witness, and the weight and value you will attach to a witness’s testimony, you should take into consideration, the condu'ct and appearance of the witness upon the stand, the interest of the witness, if any, in the result of the trial, the motives actuating the witness in testifying, the witness’s relation to, or feeling for or against the defendant, or the alleged injured party, the probability or improbability of the witness’s statements, the opportunity the witness had to observe and to be informed as to matters respecting which such witness gives testimony, and the inclination of the witness to speak truthfully or otherwise as to matters within the knowlege of such witness. All these matters being taken into account with all the other facts and circumstances given in evidence, it is your province to give to each witness such credit and the testimony of each witness such value and weight as you deem proper.

“If, upon a consideration of all the evidence, you conclude that any witness has sworn willfully falsely as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part -of such witness’s testimony.”

There was sufficient evidence in the case to convict defendant, and it belonged exclusively to the jury to say whether they would believe the evidence given on behalf of the State, which went to show defendant present where the crime occurred, ob that on the part of defendant which went to show him absent from the scene of the robbery at the time of its perpetration.

The third instruction has frequently been given in form and substance in prior cases in this court, and we re-affirm its correctness. [State v. Neuslein, 25 Mo. 111; State v. Blunt, 91 Mo. 503; State v. Bobbst, 131 Mo. loc. cit. 339; State v. Robinson, 117 Mo. loc. cit. 661; State v. Sacre, 141 Mo. 64; State v. Knock, 142 Mo. loc. cit. 524; State v. Holloway, 156 Mo. loc. cit. 227, 228.]

. And the same may be said of instruction numbered 4 which the court gave touching the presence of the defendant at the scene and time the crime took place. This being all that was necessary to cover the case, rendered unnecessary the giving of defendant’s first instruction, on the correctness of which it is therefore wholly useless to pass.

The other instructions are formulated after the fashion of others that have often received our indorsement.

Binding no reversible error in the record, judgment affirmed.

All concur.