State v. Sneed

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

4 S.W. 411

91 Mo. 552

STATE v. SNEED.

Supreme Court of Missouri.

May 16, 1887.

1. SPECIAL JUDGE — POWERS OF — NEW TRIAL.

Rev. St. Mo. § 1879 authorizes the election of a special judge in certain criminal cases, and confers on him all the powers of the regular judge during the trial of the particular case for which he is elected, but provides that, upon the conclusion of that trial, his power shall instantly cease. Held that, if the judgment rendered by him is reversed, on appeal, he still has authority to hear the case upon the new trial.

2. HOMICIDE — PROVOCATION — INSTRUCTION.

Upon a trial for homicide, it is the duty of the court to define what is lawful or just provocation only when there is evidence in the case of such provocation; and, if there is no such provocation, the court should tell the jury so.

3. SAME — "DELIBERATELY."

The word "deliberately" was defined to the jury as signifying an act done in cold blood, and not in a sudden passion caused by a lawful or reasonable provocation. Held not erroneous.

Appeal from criminal court, Jackson county.

Atty. Gen. Boone, for respondent. Jenkins & Clarke, for appellant.

NORTON, C. J.

The defendant was tried and convicted of murder in the first degree at the August term, 1886, of the criminal court of Jackson county, and, his motion for new trial being overruled, he has appealed to this court, and assigns as his first ground of error that the special judge who presided at the trial was not elected as required by the statute, and had no authority as judge to try and sentence defendant. It appears from the record that Hon. H. P. WHITE was the judge of the criminal court of Jackson county, and that at the August term, 1884, of said court, defendant made an affidavit under section 1877, which rendered said judge incompetent to preside at the trial, whereupon an election was ordered and held under section 1878, Rev. St., which resulted in the election of Hon. I. K. SHELEY, as special judge, who proceeded to try the cause, which resulted in the conviction and sentence of defendant for murder in the first degree, which judgment, on appeal to this court, was reversed, and the cause remanded for trial to said criminal court; and when called for trial at the August term, 1886, of said court, said SHELEY, who had been elected special judge to try the case as above stated, proceeded to preside at the trial, resulting, as before stated, in the conviction of defendant.

It is claimed by counsel that under section 1879, Rev. St., the power of the special judge to try the cause was exhausted when he signed the bill of exceptions in the trial had at the August term, 1884. The above section is as follows: "The special judge, elected as provided in the next preceding section, shall, immediately after his election, take an oath to support the constitution of the United States and of the state of Missouri, and to hear and try the particular cause or motion pending, without fear, favor, or partiality; and such special judge shall possess during such trial or hearing, and in relation thereto only, all the powers, perform the duties, and be subject to the same restrictions, as the judge of said court, but shall have no power whatever in any other cause than the one specified in the order of record; and, upon the conclusion of the trial of said cause in said circuit or criminal court, his power and duties as such special judge shall instantly cease and determine." We are of the opinion that the trial referred to in the italicised words of the section above mean a trial in its legal sense; that is, a trial had according to the rules of law. The trial had in August, 1884, was not such a trial, but was, in the judgment of this court, a mistrial, and hence the cause was remanded for trial. Suppose, as suggested by Justice SHERWOOD during the oral argument, the special judge had sustained defendant's motion for a new trial on the ground of error committed in the trial had, could there be any question as to the right of the special judge to have proceeded and tried the cause? We think not. And the same result would follow whether the new trial was granted by the special judge, or, as it was, by this court in reversing the judgment and remanding the cause. This, we think, is made apparent by section 1998, Rev. St., art. 21, which is devoted to appeals and writs of error in criminal cases, and is as follows: "The court to which any criminal cause shall be remanded for new trial shall proceed therein in the same manner as if such cause had not been removed into the supreme court."

The case of Lacy v. Barrett, 75 Mo. 469, to which we have been cited, has no bearing on the question we have been discussing.

It is next insisted that the court erred in refusing to give instructions for murder in the second degree and manslaughter in the fourth degree. We are of the opinion that the evidence did not call for either of such instructions. On the part of the state, the evidence disclosed substantially the following state of facts: That deceased and defendant on the twenty-sixth July, 1884, drank together at a saloon in Kansas City; that deceased was greatly under the influence of liquor, and, while standing at the bar, defendant slipped...