State v. Cushing

29 Mo. 215

• Court: Supreme Court of Missouri
• Decided: October 15, 1859
• Status: Published

Opinion

Napton, Judge,

delivered the opinion of the court.

An examination of the testimony in this case has satisfied us that if the jury committed any error in their verdict, it was an error in favor of the accused.

The instructions upon which the case was tried are substantially correct. The one chiefly complained of, concerning murder in the second degree, appears to, conform-to the views expressed by this court in the case of the State v. Phillips & Ross, 24 Mo. 488.)

The instructions asked by .the defendant were, in our opinion, properly refused. The first is an instruction directing the jury to disregard the entire evidence of a witness, if they believe him false in any particular. Such instructions invade the province of the jury, whose business it is to determine the credibility of witnesses, and who are not to be hampered in exercising their judgment by any inflexible rules on the subject. The second instruction is a comment on the testimony, which, under our practice, is not permitted, and so is the third. The fourth is not law.

The proof of the venue in this case was a matter for the jury. (State v. Lamb, 28 Mo. 228.) The judgment is affirmed;

the other judges concur.