State v. Campbell , 301 Mo. 618 ( 1923 )

The sole ground of the reversal of the judgment of conviction in the majority opinion is based on the alleged error of the trial court in giving the instruction on the presumption arising from the flight of the defendant.

Our statute prohibits the reversal of the judgment in any case unless it shall appear that error was committed against the appellant materially affecting the merits of the case. [Sec. 1513, R.S. 1919.] The defendant voluntarily admitted, orally and in writing, that he killed the deceased, buried the body as heretofore detailed, to conceal his crime; that he stole and fled with the property of the deceased and was found in the exclusive possession thereof recently after the commission of these heinous crimes. There was no need for the State to rely on the presumptions of fact arising from the flight and possession of the recently stolen property. [21 Cyc. 940.] The court, in its instructions, might well have assumed that the defendant shot and killed the deceased. "This court has many times held that the trial court in its instructions to the jury may assume the truth of a proposition which is established by the undisputed evidence in the case." [Sotebier v. Transit Co., 203 Mo. 702, 102 S.W. 651; Davidson v. Transit Co., 211 Mo. 320, 356; Midwest National Bank v. Davis, 233 S.W. 411; 38 Cyc. 1667.] Indeed, the plea of insanity is but a plea in the nature of confession and avoidance; "it admits the act charged but avers there was no criminal intent accompanying the act and therefore denies the crime charged." [State v. Pagels, 92 Mo. 300, 309; State v. Weagley, 286 Mo. l.c. 689.] The instruction having reference to an admitted act, was harmless and the judgment in the furtherance of justice, should be affirmed.