
    The State v. Hendy, Appellant.
    Division Two,
    February 21, 1899.
    1. Criminal Law: identification: appellate practice. Where there is evidence, in a trial for robbery in first degree, which tends to identify a defendant as one of the robbers, the weight of such evi' denee is for the jury. And when the jury has found that the identification is sufficient, the Supreme Court will not interfere upon the ground that the evidence was not sufficient to identify defendant.
    2. Appellate Practice: bill of exceptions : failure to give all instructions. Where one instruction, given in a criminal ease, is copied in the bill of exceptions but all other instructions that were given are omitted, the Supreme Court will not, in the absence of the entire record, pass upon the giving of this one instruction.
    
      'Appeal from, St. Louis Gounty Circuit Court. — HoN. Rudolph IIiezel, Judge.
    AeeiRmed.
    
      O. J. and E. Lee Mudd for appellant.
    (1) The identification of the defendant by the prosecuting witnesses being imperfect, and some six or more witnesses discrediting the dubious identification and absolutely without contradiction or conflict towards each other, and they being of apparently substantial standing, and no impeachment of any of them, the court should have set the verdict aside. Dains v. State, 2 Humphrey, 439; 1 Bishop’s Grim. Proc. (4 Ed.), sec. 1272; Garrett v. Greenway, 92 Mo. 125; Spohn v. Bailroad, 87 Mo. 84; Whitsett v. Eansom, 99 Mo. 260; State v. Yansant, 80 Mo. 72. (2) To constitute a basis for such an instruction, on the hypothesis of false swearing, the inconsistency of evidence must evolve representations necessarily contradictory, a “direct conflict,” such as to predicate somebody’s testimony to be not only false,, but necessarily and “willfully” so. This instruction can not be given generally, merely because of contradictory evidence. Batterson v. Yogel, 10 Mo. App. 239; "White v. Maxcy, 64 Mo. 559; Bant v. Murdock, 62 Mo. 74.
    Edward 0. Grow, Attorney-General, and Sam B. Jee-eries, Assistant Attorney-General, for the State.
    (1) It is the accepted doctrine of this court that where/ the evidence is conflicting as to the guilt or innocence of the-defendant, the verdict of the jury will not be disturbed, unless some bias or prejudice on its part be shown. '(2) In his bill of exceptions the defendant has seen proper to only set out instruction numbered 6, given on the part of the-State, all other instructions being eliminated therefrom. In support of his contention that this instruction was improperly given the defendant refers to the case of White v. Maxcy, 64 Mo. 559. An examination of this ease shows that the court is inclined to throw the responsibility of giving instructions of this character on the lower court. The-•evidence in this case discloses a contradiction upon the part ■of the witnesses, some testifying to a certain state of facts and others testifying directly opposite. The trial judge was in a position to judge as to the conduct and general appearance of the witnesses upon the stand, and it is a matter which should be solely confined to him in passing upon the question as to whether or not the instruction should be given. Indeed, the court is required to instruct upon all questions of law arising out of the testimony and in view of the contradictory features of the evidence in this case, should the court have failed to so instruct the jury, the defendant would have alleged failure to instruct in that regard and asked that the judgment be, for that reason, reversed. It was an instruction to which he was entitled and which was properly given by the court.
   BUEGESS, J.

Defendant and one James Drummond were jointly indicted in the circuit court of St. Louis county for robbery in the first degree. He was afterwards awarded a separate trial, and was on the twentieth day of April, 1898, put upon his trial in said court, convicted of the offense with which he was charged and his punishment fixed at five years imprisonment in the penitentiary.

He appeals.

The robbery was committed between five o’clock and rundown on the evening of September 26, 1891, the victim being Mrs. Eose Pavelec. On that evening she, her husband, father and two other persons went to a place called Horn’s Grove, in St. Louis county, a short distance outside of the city limits of the city of St. Louis, where they remained a short time, and about the time they were ready to start home the defendant and Drummond came upon tliem with revolvers in their hands, presented one of them to the head of Mrs. Pavelec, threatened to shoot her, and at the same time took from the bosom of her dress against her will .her purse containing $5.50.

Tbe defendant was afterwards identified by ber, arrested and convicted.

Tbis first point raised upon tbis appeal is witb respect to tbe identification of tbe defendant as one. of tbe persons, wbo committed tbe robbery, defendant’s contention being that tbe evidence was not sufficient for that purpose. "We can not however concur in tbis view. There was at least some evidence tending strongly to show that defendant was one of tbe robbers, and its weight was for tbe consideration, of tbe jury. .They found that tbe identification was sufficient, and their verdict will not be interfered witb by tbis court upon that ground.

Tbe sixth instruction given by tbe court to tbe effect that tbe jury might disregard tbe testimony of any witness wbo, in their opinion, bad willfully sworn falsely to any material fact, is criticised upon tbe ground of tbe want of some fact or facts upon which to predicate it. Tbis instruction is copied into tbe bill of exceptions, and made part of tbe record, but all other instructions that were given are omitted therefrom, and without tbe entire record before us,, we can not say that tbe court committed error in giving tbis instruction. [Greenabaum v. Millsaps, 77 Mo. 474; Birney v. Sharp, 78 Mo. 73; Evans-Snyder Buell Co. v. Turner, 143 Mo. 638.] Moreover, tbe evidence was we think sufficiently contradictory to justify tbe instruction.

Finding no reversible error in tbe record, we affirm the-judgment,

GaNtt, P. J., and Shekwood, J., concur.  