State v. Washburn

• Decision Date: 16 May 1887
• Parties: STATE v. WASHBURN.
• Court: Missouri Supreme Court

4 S.W. 274

91 Mo. 571

STATE v. WASHBURN.

Supreme Court of Missouri.

May 16, 1887.

1. CRIMINAL PRACTICE — NEW TRIAL — GROUND FOR.

A juror on a jury which was out, who was to be a witness in a subsequent case, was brought into the court-room and questioned about the former case, in order to determine whether the prosecuting attorney could go on with the latter case. Held, that such proceeding was not ground for setting aside the verdict in the former case.¹

2. SAME — MISCONDUCT OF JURY.

Rev. St. Mo. § 1910 provides that the jury may retire to deliberate on their verdict in charge of an officer, who, in felony cases, shall be sworn to keep them together in some private room, and not permit any person to speak or communicate with them, unless by order of court. Held, that the mere separation of a juror from his fellows, to answer a call of nature, after the jury have retired to consider of their verdict, the juror being in charge of an officer, is not violative of this section; especially where it appears that the separation was by permission of court. Nor is it material that the officer procured a glass of beer for the juror while he was out, it not appearing that the juror's mind was affected thereby, or that intoxication resulted.

Appeal from circuit court, Jefferson county.

The Attorney General, for defendant in error.

BLACK, J.

The defendant was indicted under section 1264 for a felonious assault. He was found guilty, and his punishment assessed at two years' imprisonment. He has filed no brief, and we only have the motion for a new trial as indicating his complaint which leads to this appeal. The evidence of a number of witnesses for the state shows that the defendant entered a saloon, and at once, without any provocation or excuse, began cursing and abusing Shaeffer, the bar-keeper, who directed him to desist from the use of such language and boisterous conduct. Thereupon the defendant threw a beer-glass at Shaeffer, while the latter had his back towards defendant, and was in the act of drawing a glass of beer from the cooler for another person who had just stepped into the saloon. The glass thrown by defendant hit the barkeeper on the head, knocked him down, and rendered him unconscious for a time. For the defense there was evidence to the effect that Shaeffer made some demonstrations as if to strike the defendant, and that the latter had reasonable cause to believe that he was in danger of personal violence, and threw the glass by way of self-preservation. The point made in the motion for a new trial, that the verdict is against the evidence, it is plain to be seen, is not well taken.

We see no objection to the instructions given by the court of its own motion. They present every theory of the case disclosed by the evidence, and further instructions were not asked.

We infer from the record that a reversal is asked mainly upon alleged misconduct of the prosecuting attorney, and of two of the jurors. From the affidavits and the statement of the presiding judge, it appears that, after the jurors in this case had retired to consider of their verdict, another case, of State v. Rogge, was called for trial. The prosecuting attorney stated, in open court, that he could not announce until he saw one of the jurors in this case; that the juror and another person, both of whom lived in the same neighborhood, were witnesses in the case then called; and that he would have to speak to the juror to ascertain whether the other witness was or would be in attendance. Thereupon the judge had the juror brought into the court-room, and the prosecuting attorney made inquiry as to the whereabouts of the other witness, but said nothing as to this case. All this took place under the eye of the court, and in the presence of the defendant and his attorney, though it is to be...