22 S.W. 617 (Mo. 1893), The State v. Sansone

Citation:22 S.W. 617, 116 Mo. 1
Opinion Judge:Gantt, P. J.
Party Name:The State v. Sansone, Appellant
Attorney:C. H. Nearing and Boland & O'Grady for appellant. R. F. Walker, Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:May 16, 1893
Court:Supreme Court of Missouri
 
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Page 617

22 S.W. 617 (Mo. 1893)

116 Mo. 1

The State

v.

Sansone, Appellant

Supreme Court of Missouri, Second Division

May 16, 1893

Appeal from Jackson Circuit Court. -- George L. Walls, Esq., Special Judge.

Affirmed.

C. H. Nearing and Boland & O'Grady for appellant.

(1) The method employed in the selection of twenty-five additional jurors to complete the panel of forty-seven was contrary to act approved April 1, 1891, and illegal, and their verdict should be set aside and the case remanded for a new trial. Acts 1891, p. 173. (2) The court erred in permitting the juror, Martin Gossett, after the jury had been sworn, and during the progress of the trial, to separate from his fellow jurors for the space of one hour, in the charge of an officer not sworn to take charge of such juror or the jury, and the presumption that defendant was thereby prejudiced has not been overcome by the affidavits filed by the state. (3) There was no evidence upon which to predicate an instruction for murder in the first degree, and instruction number two, given for the state, ought not to have been given. State v. Riley, 100 Mo. 493. There was no evidence of premeditation on the part of defendant. The testimony of all the witnesses, for both the state and the defendant, shows that at and immediately prior to the time of the homicide, opprobious epithets were passed between deceased and defendant and that the act of defendant was done at once. This, of itself, makes the offense, if any, murder in the second degree or a lesser offense, according to the attending circumstances. State v. Bulling, 95 Mo. 221; State v. Holme, 54 Mo. 161; State v. Foster, 61 Mo. 553; State v. Wieners, 66 Mo. 25; State v. Robinson, 73 Mo. 308; State v. Anderson, 98 Mo. 472. (4) The state's instruction number eleven on the law of self-defense requires the jury to find that the facts which caused defendant's reasonable apprehension "have been established by the evidence in the case" before they can acquit. That is tantamount to an instruction that such facts must be proved by a preponderance of the evidence, which would have been improper. The presumption of innocence attends the defendant throughout the trial, and unless the evidence for the state repelled defendant's evidence of self-defense beyond a reasonable doubt, the jury should acquit, and they should have been so instructed. State v. Hickman, 95 Mo. 329; State v. Hill, 69 Mo. 453: State v. Wingo, 66 Mo. 181; State v. Alexander, 66 Mo. 158. (5) The court should have instructed the jury for manslaughter. There was evidence of previous threats made by deceased against the life of defendant, communicated to the defendant; that deceased, immediately before the homicide, directed opprobrious epithets, toward the defendant; that deceased caught defendant by his vest, and was in the act of drawing a pistol when defendant shot him. State v. Ode, 73 Mo. 288; State v. Starr, 38 Mo. 277; State v. Gilmore, 95 Mo. 554; State v. Branstetter, 65 Mo. 154; State v. Edwards, 70 Mo. 483; State v. Dunn, 80 Mo. 689; State v. Woods, 97 Mo. 32; State v. Wilson, 98 Mo. 449; State v. Talmage, 107 Mo. 543. (6) While no instructions for manslaughter were asked by defendant, yet it was the duty of the court to instruct the jury on all grades of homicide which the evidence tended to prove, whether asked or not. State v. Henson, 106 Mo. 70; State v. Turlington, 102 Mo. 662; State v. Palmer, 88 Mo. 568; State v. Branstetter, 65 Mo. 154; State v. Kilgore, 70 Mo. 558; State v. Johnson, 76 Mo. 127; State v. Dunn, 80 Mo. 689. (7) The court erred in its rulings on the evidence. (8) The court also erred in not granting a new trial on the ground of newly discovered evidence. State v. Murray, 91 Mo. 103.

R. F. Walker, Attorney General, and Marcy K. Brown, Prosecuting Attorney, for the state.

(1) The statutory method of summoning, drawing and empaneling jurors is directory and not mandatory, and even though the manner of their selection be irregular, or highly objectionable, yet the verdict will not be set aside where there is no charge that defendant was prejudiced thereby. State v. Pitts, 58 Mo. 556; State v. Jones, 61 Mo. 232; State v. Breen, 59 Mo. 415; State v. Ward, 74 Mo. 256; State v. Knight, 61 Mo. 373; State v. Matthews, 88 Mo. 123. Even if objection be taken in time, such objection will be disregarded unless it appears that defendant has suffered some prejudice. State v. Collins, 86 Mo. 250. (2) The defendant made no objection to the manner of selecting extra jurors at the time, nor until after verdict, in his motion for new trial. It is too late after the verdict to object to the panel of jurors or the manner of its selection. State v. Ward, 74 Mo. 256; State v. Collins, supra; State v. Gilmore, 95 Mo. 554. (3) A mere temporary separation of a juror from his fellow-jurors, where he is subjected to no improper influences, is no ground for a new trial, unless it further appears that he has been tampered with, or has been guilty of improper conduct. State v. Payton, 90 Mo. 229; State v. Carlisle, 57 Mo. 102; State v. Bell, 70 Mo. 634; State v. Collins, 86 Mo. 245; State v. Washburn, 91 Mo. 573. (4) There was evidence of deliberation and the jury was rightly instructed on murder in first degree, but defendant, not having been convicted of that charge, cannot complain of any supposed error in that regard. State v. Fritterer, 65 Mo. 424; State v. Snell, 78 Mo. 243; State v. Wilson, 98 Mo. 445. (5) No instructions on manslaughter were called for by the evidence, and none should have been given. State v. Talbott, 73 Mo. 347; State v. Wilson, 88 Mo. 19; State v....

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