14 S.W. 730 (Mo. 1890), State v. Whelehon

Citation:14 S.W. 730, 102 Mo. 17
Opinion Judge:Ray, C. J.
Party Name:The State v. Whelehon, Appellant
Attorney:Dinning & Byrns with W. H. H. Thomas for appellant. John M. Wood, Attorney General, for the State.
Judge Panel:Ray, C. J. Barclay, J., dissent.
Case Date:November 17, 1890
Court:Supreme Court of Missouri
 
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Page 730

14 S.W. 730 (Mo. 1890)

102 Mo. 17

The State

v.

Whelehon, Appellant

Supreme Court of Missouri

November 17, 1890

Appeal from Jefferson Circuit Court. -- Hon. John L. Thomas, Judge.

Reversed and remanded.

Dinning & Byrns with W. H. H. Thomas for appellant.

(1) There is no evidence tending to prove tat anything done by the defendant to deceased caused or hastened its death. No authorities necessary. (2) The court erred in permitting the state to read the minutes of the evidence taken by the grand jury: Mrs. Holman, Tod Holman and Mrs. Applegate. R. S. 1889, sec. 4075; Smith v. Stickney, 17 Barb. 489; People v. Finnegan, 1 Parker, C. R. 147; Lamb v. Stewart, 2 Ohio 230; Stahle v. Spohn, 8 Serg. & Rawle, 317; Wear v. Wear, 8 Greenleaf, 42; Jackson v. Ely, 5 Cowan, 314; Munson v. Hastings, 12 Vt. 346; Robb v. Hackley, 23 Wend. 50; State v. Winkly, 14 N.H. 480; Roscoe Crim. Ev. [6 Amer. Ed.] pt. of Judge Sharswood's note on p. 96; Russell v. Coffin, 8 Pick. 143; Moore v. Rodgers, 10 Conn. 13. (3) The court erred in permitting the state to read in evidence the minutes of Mrs. Applegate before grand jury, at some time when she had not testified on this trial of the case as a witness. State v. Thomas, 78 Mo. 327; State v. Grant, 79 Mo. 113. (4) The verdict was against the evidence, and against the weight of the evidence, and against the law as declared by the court.

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

Conceding the grand jury notes were improperly admitted, it was not reversible error. State v. Owen, 78 Mo. 367.

Ray, C. J. Barclay, J., dissent.

OPINION

[102 Mo. 19] Ray, C. J.

-- Defendant and his wife were jointly indicted at the September term, 1886, of the circuit court of Jefferson county for murder in the first degree. The indictment charged that defendants in said county, on the first day of December, 1885, and on divers other days and times between that day and the first day of April, 1886, made divers assaults in and upon one Della Whelehon, a female child of the age of three years, and at divers times during said dates struck, beat and wounded the said Della Whelehon with sticks and other weapons to the jurors unknown; and that it was the duty of said defendants to provide for and take care of said Della Whelehon, and, contrary to their duty in that behalf, they put and placed her out of their house, and into an open place and left her exposed to the inclemency...

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