State v. Crane

Citation202 Mo. 54,100 S.W. 422
PartiesSTATE v. CRANE.
Decision Date05 March 1907
CourtUnited States State Supreme Court of Missouri

Rev. St. 1899, §§ 2594, 2597 [Ann. St. 1906, pp. 1535. 1538], provides that a judge shall be incompetent to try any criminal case when "defendant" makes an affidavit, supported by the affidavit of two other persons, that the judge will not afford him a fair trial, in which case another judge shall be called in. An affidavit under the statute was made by defendant's attorney, and no objection was made to the calling in of another judge, and no exception was taken. Held, that defendant could not complain after conviction on the ground that the affidavit by the attorney was insufficient.

2. CRIMINAL LAW — PLEA IN ABATEMENT — GRAND JURY—SELECTION OF JURORS.

Rev. St. 1899. § 2487 [Ann. St. 1906, p. 1493], provides that one held to answer a criminal charge may object to the competency of any one summoned to serve as a grand juror before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecutor, and has been summoned or bound in a recognizance as such, and, if such objection shall be established, the person so challenged shall be set aside, and section 2488 [page 1494] provides that no challenge to the array, or to any person summoned as a grand juror shall be allowed in any other cases than such as are specified in the last section. Held that, where defendant was indicated by a grand jury in session at the time of the alleged crime, his plea in abatement and motion to quash the indictment on the ground of an irregularity in the selection of the grand jury was properly overruled.

3. SAME—DILIGENCE—CONTINUANCE.

There was no error in refusing an application for a continuance because of the absence of a witness where a subpœna was not issued for her until two days after the day the cause was set for trial, where defendant and his counsel knew the date set for the trial for three months prior thereto, and it did not appear when defendant or his counsel learned of the availability of the witness.

4. SAME—CONTINUANCE TO TAKE DEPOSITION OUT OF STATE.

There was no error in refusing an application for a continuance because of the absence of a witness, in order that his deposition might be taken in another state.

5. SAME—SUFFICIENCY OF APPLICATION.

There was no error in refusing an application for a continuance because of the absence of a witness, where the court was not informed upon what information affiant made the statement as to what the witness would testify to.

6. SAME—CUMULATIVE EVIDENCE.

The denial of a continuance because of the absence of a witness is no ground for reversal where the proposed testimony was merely cumulative, and would probably not have changed the result.

7. SAME—QUESTIONS FOR JURY—INSANITY.

Rev. St. 1899, § 2603 [Ann. St. p. 1544], provides that, if a court having jurisdiction of a criminal case shall have reason to believe that accused has become insane since indictment, proceedings shall be suspended and a jury called to try the question of insanity. By section 2604, if the jury believe that the prisoner has become insane, they shall so declare in their verdict, and the court shall order such person to a lunatic asylum to be kept until restored to reason. By section 2605, when such person shall be restored to reason, the proceedings against him shall be continued. Section 2606 [page 1545] provides that, when a person tried shall be acquitted on the sole ground that he was insane at the time of the commission of the offense charged, the fact shall be found by the jury in their verdict, and they shall further find whether such person is or has not permanently recovered, and, if they find that he has recovered, he shall be discharged, but, if not, shall be dealt with as provided in sections 2604 and 2605. Held, that the right of a trial on the question of insanity of a defendant, in advance of the trial of the charge on which he is indicted, only applies when such person becomes insane after his indictment, but where his plea is that he was insane when the crime was committed the court should not direct an independent investigation into his sanity, but leave him to make that defense on the trial.

8. JURY—CHALLENGE TO PANEL.

Where counsel for accused moved to quash the panel of jurors on the ground that, since the impaneling of the jury, a prejudicial account of the crime had appeared in a newspaper of large circulation, but counsel did not ask the privilege of examining the jurors, and it was not shown that any of them had read the article, the overruling of the motion was no ground for reversal.

9. HOMICIDE—INSTRUCTIONS—INSANITY.

On a prosecution for murder, the defense was insanity, and the court instructed that, if defendant was insane and irresponsible when he committed the crime, he should be found not guilty, but that, if he was sane, he should be found guilty, though he had since become insane. Held, that the instruction was proper.

10. CRIMINAL LAW—INSTRUCTIONS.

It was proper to instruct that testimony given by experts and physicians was subject to the same rules of credit or discredit as the testimony of other witnesses, and that such opinions "neither establish nor tend to establish the truth of the facts upon which they are based, whether the matters testified to by the witness in the case as facts are true or false is to be determined by the jury alone, and you must also determine whether the facts and matters stated and submitted to the experts in the hypothetical questions are true in fact, and have been proven in the case."

11. CRIMINAL LAW—TRIAL—ORDER OF PROOF.

In a criminal case, the order in which the testimony was to be admitted was a matter largely within the discretion of the court, and reversible error cannot be assigned upon that ground.

Appeal from Criminal Court, Jackson County; B. J. Casteel, Special Judge.

John M. Crane was convicted of murder in the first degree, and he appeals. Affirmed.

W. C. Reynolds, A. C. Durham, Milton Oldham, and Boyle, Guthrie & Smith, for appellant. The Attorney General and John Kennish, for the State.

GANTT, J.

At the April term, 1905, of the Jackson county criminal court, the grand jury returned an indictment charging the defendant with murder in the first degree of Henriette Crane. On the 15th of July, 1905, the defendant was duly arraigned upon said indictment and refused to plead thereto, but stood mute, whereupon the court directed that a plea of not guilty should be entered for the defendant, and that the cause be continued until the October term, 1905. On the 16th day of October, 1905, the defendant, by his attorney, W. C. Reynolds, filed an application for a change of venue from the regular judge of said court, on the ground of the bias and prejudice of said judge against him. The motion for change of venue was signed by the defendant by W. C. Reynolds, his attorney, and was sworn to by the latter. This application was supported by the affidavit of two other witnesses, to the effect that they were neither of kin or counsel to the defendant, and that Judge Wofford would not give the defendant a fair and impartial trial on account of the bias and prejudice of said judge. The application for change of venue was thereupon granted, and Judge B. J. Casteel, judge of the criminal court of Buchanan county, was notified and requested to preside as special judge in said cause, and the cause was set down for October 17, 1905. On the 17th of October, 1905, Judge Casteel appeared and assumed the bench, and thereupon the defendant withdrew his plea of not guilty, and filed a plea in abatement and a motion to quash the indictment. The plea in abatement alleged that the grand jury which indicted the defendant was not drawn and summoned from the body of Jackson county, as by law required, but was selected and named from a list prepared by the judge without legal authority therefor, and prayed that the same might be quashed. The motion to quash contained the same grounds, with the additional charge that the indictment failed to state facts sufficient to constitute a crime. In support of the motion to quash and the plea in abatement, the defendant offered in evidence the testimony taken in another case of the state against Miller in the same court, wherein the indictment was challenged, and an effort made to show that the grand jury had been summoned by the marshal from a list furnished him by Judge Wofford, but in which hearing there was no evidence to sustain said charge, and the motion in the Miller Case was overruled, and thereupon both the plea in abatement and motion to quash were overruled by Judge Casteel in this case. Thereupon the defendant filed an application for change of venue to some other county on the ground of the prejudice of the inhabitants of Jackson county, which application was supported by affidavits of two other witnesses. No notice of the making of this application had been given the prosecuting attorney by the counsel for the defendant prior to the filing of the same, and thereupon the court overruled said application. The defendant then filed an application for a continuance on the ground of the absence of witnesses, which application, having been heard, was by the court overruled. The defendant then filed a motion by and through his attorney, W. C. Reynolds, Esq., for an order of the court to inquire into the sanity of the defendant, which motion was also overruled. A motion to quash the panel of jurors summoned to try the cause was then made by the defendant and overruled by the court. At this stage of the proceedings the defendant by another attorney, M. J. Oldham, filed a plea to the jurisdiction of the court, or rather to the jurisdiction and right of Judge Casteel to preside in the cause, on the ground that the defendant himself did not make...

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