35 S.W. 92 (Mo. 1896), The State v. Taylor

Citation:35 S.W. 92, 134 Mo. 109
Opinion Judge:Sherwood, J.
Party Name:The State v. Taylor et al., Appellants
Attorney:D. M. Wilson, Ralph F. Lozier, J. B. Hale, and Virgil Conkling for appellants. R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, T. M. Bresnehan, prosecuting attorney, J. L. Minnis, E. B. Fields, L. A. Holliday, B. F. Pierce, and Sidney Miller for the state.
Judge Panel:Sherwood, J. Gantt, P. J., and Burgess, J., concur.
Case Date:April 21, 1896
Court:Supreme Court of Missouri
 
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Page 92

35 S.W. 92 (Mo. 1896)

134 Mo. 109

The State

v.

Taylor et al., Appellants

Supreme Court of Missouri, Second Division

April 21, 1896

Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.

Affirmed.

D. M. Wilson, Ralph F. Lozier, J. B. Hale, and Virgil Conkling for appellants.

(1) Every juror who had formed an opinion on the issue from reading in the Democrat the literal or substantial testimony of the former trial was incompetent and totally disqualified under the law of Missouri. Const. of Mo., art. 2, sec. 22; Const. U.S., 6th amendment; R. S. 1889, sec. 4197; State v. Culler, 82 Mo. 623; State v. Hopkirk, 84 Mo. 283; State v. Wilson, 85 Mo. 140; State v. Hultz, 106 Mo. 53; State v. Robinson, 117 Mo. 649; State v. Bryant, 93 Mo. 273, separate opinion of Judge Sherwood. (2) Martin M. Dyer was competent as a juror, although having lived in the county and state only six months. It was error to refuse to accept him on the panel. R. S. 1889, sec. 6060; State v. France, 76 Mo. 681; State v. Fairlamb, 121 Mo. 137. At the time the juror was excused, prompt objection was made and exception saved and objection renewed in motion for new trial and accompanied by affidavit showing qualification of juror. State v. Ward, 74 Mo. 253; State v. Jackson, 96 Mo. 200. (3) After the commission of the offense, no amendment of the statute could legally deprive defendants of their preexisting right to forty-eight hours for challenges. In ruling otherwise, error was committed by the trial court. R. S. 1889, sec. 4204. The act of March 9, 1895 (Laws, p. 165), is inoperative as to this case. State v. Grant, 79 Mo. 113. "No bill of attainder or ex post facto law shall be passed." Const. U.S., art. 1, secs. 9, 10; Const. of Mo., art. 2, sec. 15; Kring v. Missouri, 107 U.S. 506; Ex parte Medley, 134 U.S. 160; State v. Fairlamb, 121 Mo. 151. (4) The court erred in admitting the cross-examination of Mrs. Edward Fowler, no cross-interrogatories having been attached to the special commission under which her deposition was taken. R. S. 1889, secs. 4147, 4148, 4449, 4450, 4451, 4452; Shep-herd v. Railroad, 85 Mo. 629. (5) The state was not entitled to read in evidence the entire testimony of John Hoke at the former trial. Only such portion was competent as related to the matter upon which he was being contradicted by the defense. Starkie on Ev., p. 214; Taylor on Ev., sec. 1445; Wharton on Ev., sec. 483; State v. Cooper, 83 Mo. 698. (6) The trial court erred in excluding the depositions of L. D. Gleason and wife, which were in legal form and immediately connected with the subject of the inquiry. Starkie on Ev. [9 Ed.], 203; 1 Thompson on Trials, sec. 469; Rice on Criminal Ev., secs. 221, 232; Schuster v. State, 80 Wis. 107; Com. v. Hunt, 4 Gray (Mass.), 421; Seller v. Jenkins, 97 Ind. 430; Atty-Gen. v. Hitchcock, 1 Exch. 91; State v. Jaeger, 66 Mo. 180; State v. Thomas, 78 Mo. 343. (7) The testimony of Mrs. David Gibson before the coroner's jury, offered after evidence by the state of her contradictory statements, was competent to confirm and corroborate her testimony on the trial, and was erroneously excluded. Rice on Criminal Ev., secs. 86, 233; State v. Grant, 79 Mo. 133; State v. Whelehon, 102 Mo. 21; State v. Patrick, 107 Mo. 155. (8) The cross-examination of defendant, Wm. P. Taylor, violated both the spirit and the letter of the statute. R. S. 1889, sec. 4218; State v. Turner, 110 Mo. 196. (9) Instructions 1 and 3, given for the state, were erroneous in requiring the conviction, if one was had, to include both defendants. It was competent for the jury to convict one and acquit the other, and they should have been so instructed. 1 Bishop's New Criminal Law, sec. 800; 1 Bishops New Crim, Proc., secs. 472, 1036, 1037; State v. Rambo, 95 Mo. 465; State v. Kaiser, 124 Mo. 651. (10) Instruction number 6, given for the state, was erroneous. It virtually directs the jury to ignore the defendants' testimony, thereby depriving them of the benefit of the statute which makes them competent witnesses, and is clearly a comment upon the evidence. R. S. 1889, secs. 4218, 4220; State v. Maguire, 69 Mo. 202; State v. Zorn, 71 Mo. 416; State v. Cook, 84 Mo. 46; State v. Young, 99 Mo. 676; State v. Brown, 104 Mo. 374; State v. Ihrig, 106 Mo. 270; State v. Renfrow, 111 Mo. 596; State v. Lingle, 128 Mo. 538. (11) The court erred in failing to give an instruction upon alibi defining the term and applying it to the facts in evidence in this case. R. S. 1889, sec. 4208; State v. Branstetter, 65 Mo. 155; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568; State v. Maguire, 113 Mo. 675; State v. Umble, 115 Mo. 463; State v. Taylor, 118 Mo. 180. (12) The argument of state's counsel exceeded the bounds of legitimate discussion and was grossly improper. It constitutes reversible error. State v. Lee, 66 Mo. 165; State v. Jackson, 95 Mo. 623; State v. Young, 99 Mo. 683; State v. Ulrich, 110 Mo. 350; State v. Warford, 106 Mo. 65; State v. Woolard, 111 Mo. 248; State v. Bobbst, 131 Mo. 328. (13) The argument of prosecuting attorney Miller was a ruthless and wanton violation of the statute. It was inexcusable, intensely prejudicial, and constituted error in its most virulent form. R. S. 1889, sec. 4219; State v. Martin, 74 Mo. 547; State v. Fairlamb, 121 Mo. 150; State v. Brownfield, 15 Mo.App. 593; State v. Leabo, 89 Mo. 257; Johnson v. State, 63 Miss. 313; Raddick v. State, 16 So. Rep. (Miss.) 490; Hunt v. State, 12 S.W. 737; Johnson v. State, 20 S.W. 490; Wilkins v. State, 26 S.W. 409; Brazell v. State, 26 S.W. 727; People v. Brown, 53 Cal. 66; Baker v. People, 105 Ill. 452; Quinn v. People, 123 Ill. 333; Showalter v. State, 84 Ind. 562; Coleman v. State, 111 Ind. 563; State v. Tennison, 42 Kan. 330; State v. Banks, 7 A. (Me.) 269; Com. v. Worcester, 141 Mass. 58; Staples v. State, 14 S.W. 603. (14) The beer drinking, card playing and courting of notoriety, in which the jury indulged, was alone sufficient to attaint and vitiate the verdict and require its utter rejection. State v. West, 69 Mo. 405; State v. Baldy, 17 Iowa 39; Ryan v. Harrow, 27 Iowa 494; Jones v. State, 13 Tex. 168. (15) In refusing to defendants any reasonable time to secure rebuttal affidavits in support of the motion for new trial, the trial court abused the discretion in it vested, and committed manifest error. "If affidavits can not be prepared in time for the hearing, the proper procedure is to ask for further time, which will usually be granted where good reasons appear therefor." 2 Thompson on Trials, sec. 2760. Howland v. Reeves, 25 Mo.App. 463. The discretion of the trial court in refusing a continuance is reviewable upon appeal, and the judgment will be reversed if the continuance was improperly refused. State v. Maddox, 117 Mo. 681; State v. Newsum, 129 Mo. 154.

R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, T. M. Bresnehan, prosecuting attorney, J. L. Minnis, E. B. Fields, L. A. Holliday, B. F. Pierce, and Sidney Miller for the state.

(1) The defendants did not preserve their exceptions to the action of the court in overruling their motion for a rule on certain attorneys for the state to show by what authority they appeared in the case. These exceptions should have been preserved at the term at which they were taken, and could not be saved by incorporating them into a bill at a subsequent term. R. S. 1889, secs. 2168, 4221. It is the universal practice in this state for attorneys to be employed to assist in criminal prosecutions, both in the trial and appellate courts. State v. Duncan, 116 Mo. 307. The fact that these attorneys may have been employed by persons living in the community where the killing occurred, did not render it improper. State v. Sweeney, 93 Mo. 42. The action of the court in permitting them to assist was equivalent to an appointment. State v. Griffin, 87 Mo. 608. (2) The failure of R. F. Lozier, one of defendants' counsel, who was cognizant of alleged expressions of prejudice against defendants, by one of the officers charged with summoning jurors, to properly bring the matter before the court, was a waiver of their right to have it reviewed on appeal. State v. Smith, 114 Mo. 406; State v. Sansone, 116 Mo. 1. The facts stated by Mr. Lozier were controverted and the trial court heard affidavits pro and con, and its finding and conclusions will not be disturbed by this court, unless the discretion exercised has been abused, and that to the prejudice of the defendants. State v. Howell, 117 Mo. 342; State v. Howard, 118 Mo. 136. (3) The court committed no error in excusing Dyer from the venire of three hundred. He was not at the time a citizen of Missouri. (4) The instructions given for the state correctly declare the law. They were exceedingly liberal to the defendants, and present clearly all the issues made by the indictment and the testimony. The twelve instructions given for the defendants were more liberal than was warranted by the law or the testimony. The court properly gave no instruction for murder in the second degree. There was no evidence upon which to base it. State v. Kloss, 117 Mo. 591; State v. Brown, 119 Mo. 527. (5) This court will not reverse a judgment because of the insufficiency of the testimony, except where there is a total failure of proof. State v. Fisher, 124 Mo. 462; State v. Punshon, 124 Mo. 448; State v. Young, 119 Mo. 495; State v. Banks, 118 Mo. 117. The testimony in this case shows the guilt of both defendants beyond a reasonable doubt. (6) The alleged error of improper remarks of counsel has no foundation in fact. They were either harmless or were properly rebuked by the court. Where the court properly rebukes and reprimands a prosecuting officer who uses improper language in argument, the appellate court will not interfere and reverse a judgment. State v. Brandenberger, 118 Mo. 187; State v. Howard, 118 Mo. 145; State v. Graves, 95 Mo....

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