State v. Marshall
| Decision Date | 31 October 1865 |
| Parties | STATE OF MISSOURI, Respondent, v. RICHARD MARSHALL, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Washington Circuit Court.
Vastine, for respondent.
The law does not require an order of the court on the sheriff to be sealed. (R. C. 1855, p. 910, § 2.)
Appellant waived all informalities, if any, in the impaneling of the jury, by going to trial without making exceptions thereto. (Samuels v. State, 3 Mo. 68.)
The State can prove declarations of defendant, but defendant cannot prove them, when objection is made.
John T. Witham, for appellant.HOLMES, Judge, delivered the opinion of the court.
The defendant was indicted, tried and convicted of murder in the first degree, and sentenced to be hung and an appeal was taken to this court. There was no motion in arrest of judgment; no motion for a new trial appears in the bill of exceptions. Some exceptions were taken and objections were made, in the progress of the trial, without saving exceptions. Nevertheless, we have examined the whole record, in order to see if there were any error that would justify us in reversing the judgment.
It is objected that the jury was not summoned in accordance with the provisions of the statute. There was no challenge to the array; no exceptions are saved to the ruling of the court on any part of the proceedings relating to the selection and impaneling of the jury. The juror whose competency was objected to, was not called and sworn to sit on the panel. It was not necessary that the order of the court, directing the sheriff to summon jurors, should be issued under the seal of the court. All these points are decided in Samuels v. State (3 Mo. 68). The judgment of the law is that the proceedings were correct, unless it be shown by the record that they are erroneous. (Walter v. Cathcart, 18 Mo. 256.)
Questions were asked the witness David N. Baker, whether he had ever had a difficulty with his father, the deceased; whether he had not, previously to his father's death, threatened to take his life; whether he had not previously forbid his father and mother his house; whether he and his father had not fought, at or near this same spot, at a previous time; and whether, at or near the same spot, at a previous time, he had not drawn a knife on his father, and threatened to kill him. To the first question the witness objected to answer, and his objection was sustained; and the other questions, the circuit attorney interposing, were also ruled out. These matters had no tendency to show any feelings of hostility on the part of the witness towards the prisoner, in which case they might have been admitted. They related, in part, to another time and a different transaction, and to collateral facts which were impossible of affording any reasonable presumption or inference as to the principal matter under the investigation; and as such they were irrelevant. (1 Greenl. Ev. §§ 52, 450.) As tending to criminate himself, he was privileged to refuse to answer; and having declined to answer the first question of the series, it may fairly be taken that his refusal continued, though the circuit attorney interposed afterwards for his protection, (1 Greenl. Ev. § 451.)
The whole evidence was of such a character as satisfactorily to sustain the verdict of the jury, and we do not find any such error in these rulings as would justify a reversal of the judgment.
It is insisted that there was error in excluding from the jury by instructions the statement of the prisoner, which was taken down by the examining magistrate after it had been admitted at the instance of the defendant. This statement was not competent evidence either for the State or for the prisoner, and there was no error in excluding it from the jury. (Green v. State, 13 Mo. 394.) If it had been admitted for the State against the accused, and then excluded from the jury by instruction, there would have been some ground for the objection. (State v. Mix, 15 Mo. 153; State v. Wolf, 15 Mo. 168.)
The instructions were excepted to on the ground that they tended to mislead the jury, and for the reason that they told the jury to disregard the statement of the prisoner, made after the transaction. Such declarations could not be evidence in his own favor. There was nothing in the instructions which could have misled the jury in any way prejudicial to the rights of the prisoner. They placed the whole matter fairly enough before the jury.
It appears by the record, that a motion for a new trial was made and overruled; but the motion itself was not made a part of the bill of exceptions, nor does it appear in the record. We think proper, on this occasion, to state distinctly what we conceive to be the law on this subject, under existing statutes, as applicable both to civil and crimimal cases. The declares that no assignment of errors, or joinder in error, shall be necessary, on an appeal or writ of error, in a criminal case; but that this court shall proceed upon the return thereof, without delay, to render judgment upon the record before them. (R. C. 1855, p. 1205, § 20.) It provides nothing directly in relation to a motion for a new trial, or in arrest of judgment. All such errors as appear upon the face of record, or such as may be taken advantage of by a motion in arrest, or by writ of error, will be noticed here as a matter of course; but as to exceptions taken in the progress of the trial, as to motions for a new trial, and in arrest, which can become a part of the record only by bill of exceptions, the same rules are to govern as in civil cases. The act concerning criminal practice expressly declares, that the provisions of law in civil cases relative to the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases as far as they are in their nature applicable thereto, subject to the provisions contained in any statute (R. C. 1855, p. 1191-2, § 18); and verdicts may be set aside, and new trials awarded, on the application of the defendant, and continuances may be granted to either party, in criminal cases, for...
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St. Louis v. Senter Comm. Co., 32488.
...filed at the appropriate time, the cause will not be reviewed in the appellate tribunal — Richmond v. Pogue, 36 Mo. 313; State v. Marshall, 36 Mo. 400; Banks v. Lades, 38 Mo. Again in Case v. Fogg, 46 Mo. 44, l.c. 47: "... and those errors only can be considered (on appeal) that are raised ......
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