State v. Ott

Wagner, Judge,

delivered the opinion of the court.

The defendant was convicted of murder in the second degree, and sentenced to the penitentiary for the term of thirty years. Upon the trial the evidence was very conflicting, and presents nothing which would authorize us to interfere with, the verdict. In the matter of instructions the court doubtless aimed to be fair, as it gave about twenty on each side, and rejected about the same number offered respectively by the prosecution and the defense. The instructions covered mainly the points in the ease. But on account of their exceeding prolixity they were not as intelligible as they should have been. Where counsel insist upon offering such a multitude of verbose instructions, the obvious tendency of which is to confuse the jury rather than enlighten or guide them, it would conduce to the administration of justice for the courts to refuse them altogether, and to give of their own motion, a few clear, precise and intelligent instructions covering the law in the case.

The record shows that the prisoner was present in court when the jury was impaneled, and that he entered the plea of not guilty. From that time till the close of the trial, which occupied several days, there is no evidence that he-was-in court at any *328 time. Nor does it appear that he was present when the verdict was rendered.

The statute is explicit that -no person indicted for felony can be tried unless he is personally present during the trial (Wagn. Stat. 1103, § 15), and this court has frequently decided that it was necessary for the record to show that the prisoner was in court during the trial and at the rendition of the verdict. (State v. Matthews, 20 Mo. 55 ; State v. Buckner, 25 Mo. 167 ; State v. Cross, 27 Mo. 332 ; State v. Braumschweig, 36 Mo. 397 .) For this cause, then, the .judgment must be reversed.

After the conviction it was suggested that the prisoner was under the age of sixteen years, and it was moved that his punishment be commuted to one year’s imprisonment in the county jail, 'in accordance with the provisions of the statute. (Wagn. Stat. 515, § 21; State v. Gavner, 30 Mo. 44 .) Thereupon the court assigned a day to hear testimony in reference to his age. When the motion came up for hearing, the record of the marriage between the prisoner’s father and mother was introduced, which showed most clearly that he could not have been,sixteen years of age if he was born in lawful wedlock. The mother testified that he was born about ten months after her marriage, and the father swore to the day, month and year of his birth, making his age less than sixteen years. In addition to this, persons who had known him from the time he was a little child testified that he was not sixteen. These witnesses were all unimpeached, the record could not be impeached; and unless we are to assume his illegitimacy, it seems to me that the evidence was very clear and .conclusive. Of course the law would indulge no such presumption, but would rather lean in favor of legitimacy.

Against this evidence nothing was offered except the declarations of the prisoner on a former occasion, that he was over the age of sixteen. These declarations were of little weight against the proof produced on the other side, and the court, in overruling the motion for a commutation, certainly acted against the evidence.

The judgment must be reversed and the cause remanded.

The other judges concur.