12 S.W. 516 (Mo. 1889), State v. Meyers

Citation:12 S.W. 516, 99 Mo. 107
Opinion Judge:Sherwood, J.
Party Name:The State v. Meyers, Appellant
Attorney:F. M. Lowe for appellant. John M. Wood, Attorney General, for the State.
Judge Panel:Sherwood, J. Barclay, J., defers an expression of opinion. Barclay, J., concurs in the result.
Case Date:December 02, 1889
Court:Supreme Court of Missouri
 
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Page 516

12 S.W. 516 (Mo. 1889)

99 Mo. 107

The State

v.

Meyers, Appellant

Supreme Court of Missouri

December 2, 1889

Appeal from Jackson Criminal Court. -- Hon. Henry P. White, Judge.

Reversed and remanded.

F. M. Lowe for appellant.

(1) The jury was separated during the trial of the cause, and, for this reason, the cause should be reversed. State v. Murray, 91 Mo. 95; State v. Collins, 81 Mo. 652, and R. S. 1879, sec. 1909. (2) The court erred in refusing to give the instruction asked by defendant taken from the case of State v. Pagels, 92 Mo. 300, and also instruction asked by defendant to the effect that insanity once proven is presumed to continue. State v. Lowe, 93 Mo. 570.

John M. Wood, Attorney General, for the State.

(1) Objections to the sufficiency of an indictment cannot be taken by objecting ore tenus to the introduction of evidence. State v. Risley, 72 Mo. 609. The indictment need not charge that the jurors were empanelled, sworn or charged. State v. Vincent, 91 Mo. 662. The charge in the second count that the wound was inflicted with a certain iron weapon and means, which they, the said Charles Meyers and John Bogard, then and there had and held in their hands, was sufficient. State v. Dalton, 27 Mo. 14; State v. Blan, 69 Mo. 317. The second count in the indictment in other respects correctly charges the offense of murder in the first degree, committed in the attempt, and in execution of said attempt, to rob. Laws, 1885, p. 138; State v. Hopkirk, 84 Mo. 278. (2) The objection to the state introducing witnesses whose names were not endorsed on the indictment is without merit. State v. Pagels, 92 Mo. 300. (3) The declarations of defendant and his confederate, the night of and just prior to the murder, was admissible to prove that they had no money, as a circumstance in proof of the motive of defendant, and tending to establish the charge in the second count in the indictment. Whar. Crim. Ev. [9 Ed.] sec. 24, and note. (4) The order of the admission of testimony is in the discretion of the trial court. State v. Linney, 52 Mo. 40. There was, therefore, no error committed in overruling defendant's objection to the state recalling and re-examining witness Ross. (5) Had the testimony of witness Bert Girard, objected to (rec. 191), been inadmissible, it established nothing to the prejudice of defendant, and would not constitute grounds for a reversal. (6) The confession of defendant was not induced or extorted by means of any promises or threats, or other influences calculated to excite his hopes or his fears. The evidence of the confession was properly admitted. State v. Hopkirk, 84 Mo. 278; Whar. Crim. Ev. [9 Ed.] secs. 672, 673; Green. Ev., sec. 223; 1 Roscoe's Crim. Ev., p. 68. (7) It was competent to prove the statement of defendant that he was guilty, made at a previous term of court when the indictment was read over to him, as testified to by witnesses Ward and McClannahan. Whether it be considered as judicial or an extra-judicial confession, it was a voluntary confession of guilt, and admissible. State v. Briggs, 27 N.W. 358; State v. Rice, 22 Tex.App. 654; State v. Giles, 23 Tex.App. 281; United States v. Kirkwood, 13 P. 234; State v. Lamb, 28 Mo. 218; State v. German, 54 Mo. 526; Roscoe's Crim. Ev. *40; Whar. Crim. Ev. [9 Ed.] secs. 664, 667; Green. Ev., secs. 216, 227; 1 Bish. Crim. Proc., sec. 1255. (8) Questions when asked an expert should be stated hypothetically, embracing the facts testified to on the trial, upon which his opinion is required. When the facts are doubtful or disputed, it is improper to ask an expert, who has heard the evidence, what his opinion is upon the case on trial. The questions asked Dr. Punton were incomplete, and otherwise objectionable in form. State v. Klinger, 46 Mo. 224; Green Ev., secs. 440; Whar. Crim. Ev. [9 Ed.] sec. 4180; 1 Roscoe's Crim. Ev., p. 2240. And the same can be said of questions asked Dr. Field. (9) Persons who are not experts are permitted to give their opinions based upon their observation of, and association with, the person alleged to be insane. See authorities, supra. The evidence of witness Chadburn objected to was, therefore, admissible. (10) Defendant saved no exceptions during the progress of the trial to the giving or refusal of the instructions, and they are not now subject to review. State v. McDonald, 85 Mo. 539, and authorities cited.

Sherwood, J. Barclay, J., defers an expression of opinion. Barclay, J., concurs in the result.

OPINION

[99 Mo. 111] Sherwood, J.

-- The second count of the indictment, upon which the defendant was tried, convicted and sentenced, reads this way: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and say, that Charles Meyers and John Bogard, on the third day of January, 1888, at the county of Jackson and state aforesaid, did feloniously, wilfully, deliberately, premeditatedly, and of their malice aforethought, make an assault upon James Weir (intending and attempting then and there the money and property of said James Weir, from the person and against the will of said James Weir, and by force and violence to the person of said James Weir, then and there to feloniously rob, steal, take and carry away), and did then and there (while so intending and attempting, and in execution of such intent and attempt) feloniously, wilfully, deliberately, premeditatedly and of their malice aforethought, with a certain iron weapon and means, an exact description whereof is to these jurors unknown, which they, the said Charles Meyers and John Bogard, then and there had and held in their hands, strike and beat him, the said James Weir, thereby giving to him, the said James [99 Mo. 112] Weir, in and upon the head of him, the said James Weir, certain mortal bruises, wounds, contusions and fractures, of...

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