16 S.W. 940 (Mo. 1891), State v. Hultz

Citation:16 S.W. 940, 106 Mo. 41
Opinion Judge:Gantt, P. J.
Party Name:The State v. Hultz, Appellant
Attorney:Squire Turner and I. W. Boulware for appellant. John M. Wood, Attorney General, and Odon Guitar for the State.
Case Date:June 30, 1891
Court:Supreme Court of Missouri

Page 940

16 S.W. 940 (Mo. 1891)

106 Mo. 41

The State


Hultz, Appellant

Supreme Court of Missouri, Second Division

June 30, 1891

Appeal from Boone Circuit Court. -- Hon. G. H. Burckhartt, Judge.

At the October term of the Boone circuit court, 1888, the grand jury returned an indictment against Marshall J. Hultz, for murder in the first degree for the killing of Allen Vawter in said county on the seventh of May, 1888. At this same term, defendant filed and made his application for a change of venue from Boone county on account of the prejudice of the inhabitants of said county against him. This application was overruled by the court.

At the April term, 1889, when the cause was reached, and after both state and defendant had announced ready for trial, the counsel for the state, without notice to defendant, filed a motion to set aside the sheriff of the county, and the coroner of the county, and appoint elisors to act in their stead in summoning the jury, and performing all other duties of the sheriff during the trial. This application is as follows:

"State of Missouri,



"Marshall J. Hultz,


"The state comes by her attorney, and moves the court for an order appointing one or more impartial persons to act as elisors in summoning the special venire ordered in this cause, and to do and perform all other functions and duties devolved upon the sheriff in the further conduct of the trial thereof, for the reasons following: Because said sheriff and coroner are unduly biased and prejudiced in favor of the defendant in the cause, and will not for said reason impartially summon the venire ordered and return an unbiased and impartial persons thereon, or execute impartially the other duties involved in the trial of said cause.

"[Signed] C. H. Gordon.

"C. H. Gordon, prosecuting attorney for the state, makes onth and says he believes the matters and facts as set out in the foregoing motion are true.

"[Signed] C. H. Gordon.

"Subscribed and sworn to me before this nineteenth day of April, 1889.

"[Signed] J. W. Stone,


Instantly on the filing of said motion, the defendant objected to the motion and affidavit, as being insufficient in itself alone to authorize the court to set aside said officers, or either of them, and to appoint other persons to exercise their official functions. And thereupon the court announced its decision to be that said motion and affidavit were sufficient, and that it was, by reason of the filing thereof, the duty of the court to set aside said officers, and the deputies of the sheriff also, and to appoint two or more elisors as therein prayed, and accordingly appointed W. I. Roberts and M. L. Edwards to act as elisors in said cause, which they proceeded to do, to which action of the court the defendant at the time objected and saved his exceptions.

On the list of the panel of forty jurors as finally selected is the name of J. T. Rowland. Counsel for defendant make the point that when this juror was examined on his voir dire that the court ordered him to "stand aside," but he remained in the box, and his name was improperly left on the panel. On his voir dire this juror answered that he had not formed or expressed any opinion as to the guilt or innocence of the defendant; was not related to defendant or deceased; had no conscientious scruples against the death penalty; was not on the grand jury that found the indictment, and was not a witness in the case.

On the cross-examination said he had read an account of the killing in the county papers, but formed no opinion from what he read; did not read the evidence taken at the preliminary trial. The stenographer reports the counsel for defendant, Mr. Turner, as saying. "Your Honor, I think this excludes him." "The court: 'Stand aside.'" When the panel was completed defendant, by his counsel, moved to quash the panel, on the ground that the court improperly set aside the sheriff and his deputies and the coroner, and appointing the elisors and holding that the "ex parte" affidavit of the prosecuting attorney was of itself sufficient to set aside the duly-elected sheriff. This motion was overruled, and defendant excepted.

During the trial defendant was sworn as a witness in his own behalf, and among other things his counsel asked him this question: "Now, Mr. Hultz, state to the jury what your intent or purpose was in firing that pistol at Mr. Vawter." To which the state objected, and the objection was sustained by the court, to which action of the court, defendant at the time duly excepted.

R. B. Akeman who was summoned as a juror stated on his voir dire examination, as to his qualification to sit as a juror, that he had heard a part of the preliminary trial, and afterwards had a full account of the tragedy, and, also, a report of the evidence on that trial in a local newspaper, the Columbia Herald; that he had formed, but had not expressed, an opinion; that he could hear the evidence and render a verdict unbiased; that he could discard his former opinion. The court refused to except him as a juror, and defendant excepted.


Squire Turner and I. W. Boulware for appellant.

(1) Defendant was entitled to a change of venue. R. S. 1879, sec. 1859. (2) It was reversible error to remove the sheriff and coroner, and to appoint the elisors. No testimony was offered to prove the alleged prejudice of the sheriff and coroner. When a ministerial officer is chosen and qualified according to law, all the presumptions both of law and fact favor the integrity and fidelity of such officer, and these presumptions must continue until they are overcome, not by mere allegation, which may itself be inspired by prejudice; but by competent proofs to the contrary. The counsel of defendant, at the filing...

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