24 S.W. 41 (Mo. 1893), The State v. Howard

Citation:24 S.W. 41, 118 Mo. 127
Opinion Judge:Sherwood, J.
Party Name:The State v. Howard, Appellant
Attorney:Holt & Holt for appellant. R. F. Walker, Attorney General, Morton Jourdan, Assistant Attorney General, for the state.
Case Date:November 21, 1893
Court:Supreme Court of Missouri
 
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Page 41

24 S.W. 41 (Mo. 1893)

118 Mo. 127

The State

v.

Howard, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Laclede Circuit Court. -- Hon. C. C. Bland, Judge.

Affirmed.

Holt & Holt for appellant.

The errors complained of by defendant are: First. Admitting illegal and irrelevant testimony on the part of the state, especially the incompetent testimony of Ed. Hoard. Second. Defendant did not have forty-eight hours to challenge the jury as shown by the record, only having forty-two hours, when he was forced into trial. Third. Giving the instructions to the jury for the state, and in particular the following instruction: "If you find the defendant guilty, you will simply so say in your verdict. With the punishment you have nothing to do. The duty of assessing the punishment to be inflicted upon the defendant is a matter of law devolving upon the court." The court has no right to intercede in behalf of the state so far as to ask a verdict from the jury on the grounds that they will be released from all responsibility. Fourth. Permitting the state's attorney to cross-examine the defendant in relation to matters to which he did not testify in chief, as shown by defendant's objections in the evidence. State v. Porter, 75 Mo. 171; State v. McLaughlin, 76 Mo. 320; State v. Turner, 76 Mo. 350. Fifth. Misconduct of W. M. Barr, attorney for the state, by attempting to and showing part of the jury, a double picture of defendant in prison garb which was not in evidence, also in going outside of the record in his closing argument. Sixth. Misconduct of prosecuting attorney Newhouse in assisting in the prosecution of the case. J. L. Newhouse had, at one time, been appointed by the court to represent the defendant, and did counsel and assist defendant in his defense, and that said Newhouse was afterwards elected prosecuting attorney and assisted in prosecuting defendant, and his affidavit, as appears by record, does not deny appearing on both sides of the case, and only offers as an excuse that he has no recollection of counseling and advising with defendant on the merits of his case. Loyd v. Railroad, 53 Mo. 509; State v. Kring, 64 Mo. 591; State v. Lee, 66 Mo. 165; State v. Reed, 71 Mo. 200. Seventh. Not excluding evidence of defendant's incarceration in the San Quentin penitentiary, California. Admitting evidence of an attempt at jail breaking. Improper evidence as to other matters and crimes offered by the state in a criminal case must be excluded by the court whether proper objections are made for the defendant or not. State v. O'Connor, 65 Mo. 374; State v. Tabor, 95 Mo. 585. Eighth. Refusing to set aside the verdict of the jury; for the evidence, as disclosed by the entire record, was insufficient to justify or support the verdict. State v. Howell, 100 Mo. 628. Ninth. Defendant was not furnished a panel of forty jurors from which to select, as shown by objections thereto and uncontradicted affidavit of defendant. One Jonathan Williams had been in the county and state less than sixty days. State v. Waters, 62 Mo. 196; State v. Pagels, 92 Mo. 300. Tenth. One of the jurors, Thomas B. Cotton, was incompetent to serve, as he was insane, as shown by the certified copies of the records of the county court of Laclede county. Insanity once proven is presumed to continue when not contradicted by expert testimony. State v. Lowe, 93 Mo. 570; State v. Meyers, 99 Mo. 107. Eleventh. At the empaneling of the jury, none of them disclosed the fact that they had expressed an opinion, and one John Gallion had prejudged the case and fails to satisfactorily explain or deny it. Jurors should be wholly unexceptional, and the test to judge their fitness and competency is on their voir dire, but if they do not answer the truth and disclose their disabilities, the prisoner is not to be deprived of his rights when he subsequently discovers the objection. State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309; State v. Taylor, 64 Mo. 359.

R. F. Walker, Attorney General, Morton Jourdan, Assistant Attorney General, for the state.

(1) No error was committed in admitting the testimony of Ed. Hoard and his wife. Although deaf and dumb, they were competent to testify, and it was proper for the court to use an interpreter in their examination. Revised Statutes, 1889, sec. 8402. (2) Appellant's complaint that he was not allowed the forty-eight hours in which to challenge the jury was made for the first time in the motion for a new trial, and hence came too late. State v. Foster, 115 Mo. 448; State v. Elvins, 101 Mo. 243; State v. Carter, 98 Mo. 176; State v. Jewell, 90 Mo. 467; State v. Bulling, 105 Mo. 204; State v. Hultz, 106 Mo. 41; State v. McDaniel, 94 Mo. 301. (3) No error was committed in the cross-examination of defendant, because it was confined to matters about which he had testified in chief. State v. Adams, 109 Mo. 208; State v. Beaucleigh, 92 Mo. 495; State v. Houx, 109 Mo. 654. (4) Whatever was the misconduct upon the part of Barr, counsel for the state, in exhibiting to the jury a picture of defendant in his prison garb, was cured by the trial court, who very promptly, in the presence of the jury, reprimanded and rebuked the attorney. State v. Dusenberry, 112 Mo. 277. The argument of Barr, complained of, was entirely legitimate and legal. He had a perfect right to discuss all questions in evidence, and draw his own conclusions in his own language. State v. Brooks, 92 Mo. 542; State v. Jackson, 95 Mo. 623; State v. Anderson, 89 Mo. 312. (5) The affidavit of J. L. Newhouse, a former counsel for defendant, but subsequently one of the attorneys for the prosecution, is to the effect that he did not at any time counsel or advise with defendant as to the merits of his case. (6) The evidence of the incarceration of the defendant in the San Quentin penitentiary was clearly admissible for the purpose of impeaching his credibility as a witness. The testimony of his attempt to break jail while incarcerated and awaiting trial for the crime in the case at bar, was also admissible; it tended to overcome the legal presumption of innocence attending the defendant, and also to establish his guilt. State v. Howell, 117 Mo. 307; State v. Moore, 101 Mo. 316; State v. Jackson, 95 Mo. 623; State v. Mallon, 75 Mo. 355. Any conduct on the part of an accused indicating a consciousness of guilt is legitimate evidence. State v. Moore, supra; State v. Howell, supra; Clark v. State, 8 Crim. Law Mag. 19; People v. Petmecky, 2 N. Y. Crim. Rep. 450. (7) The facts in this case, as developed by the testimony, present one of the strongest cases of circumstantial evidence possible. State v. Jackson, 106 Mo. 181; State v. Orrick, 106 Mo. 111; State v. Lowe, 93 Mo. 547; State v. Hicks, 92 Mo. 432; State v. Hammond, 77 Mo. 158; State v. Gann, 72 Mo. 374; State v. Musick, 71 Mo. 401. Upon the voir dire examination juror Cotton was accepted by both the state and defendant. The fact that he may at some time prior have been adjudged insane did not render him incompetent as a juror. Insanity once established is not presumed to continue, and unless it affirmatively appears that at the time he qualified as a juror he was insane, he was not disqualified by reason of his former condition. Baxter v. People, 3 Gil. (Ill.) 368; Browne's Medical Jurisprudence on Insanity [2 Ed.], sec. 322; State v. Hogshead, 6 Hump. (Tenn.) 59.

OPINION

Page 42

[118 Mo. 133] Sherwood, J.

Convicted of murder in the first degree by shooting Thomas McMichael, a deaf...

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