State v. Bryant

• Citation: 6 S.W. 102,93 Mo. 273
• Parties: STATE v. BRYANT.
• Decision Date: 28 November 1887
• Court: United States State Supreme Court of Missouri

6 S.W. 102

93 Mo. 273

STATE v. BRYANT.

Supreme Court of Missouri.

November 28, 1887.

1. CONTINUANCE — ABSENCE OF WITNESSES — AFFIDAVIT.

Rev. St. Mo. § 1884, provides for the filing of an affidavit in support of a motion for a continuance in a criminal cause, on account of the absence of witnesses. The affidavit for such purpose nowhere alleged that the testimony of the absent witnesses would be material, nor that the affiants believed it would be true, nor that the witnesses were not absent by the consent of the defendant, nor that subpoenas could not have been issued in time to procure the attendance of some of the witnesses. Held, the motion was properly denied.

2. MURDER — TRIAL — JURY — OPINIONS FORMED ON NEWSPAPER REPORT OF FORMER TRIAL.

At the impaneling of a jury in a trial of an indictment for murder, on the examination as to their qualifications, two of them stated that they had formed an opinion from rumor, and newspaper accounts of the evidence on a former trial, that it would take evidence to remove it, but that they could decide the case according to the law and the evidence, and try as impartially as if they had never heard of it. Held, that the action of the court in refusing to sustain defendant's peremptory challenge and accepting them as jurors was not error.¹ SHERWOOD, J., dissenting.

3. SAME — EVIDENCE — AFFIDAVIT FOR CONTINUANCE ADMITTED AS TRUE ON FORMER TRIAL.

Rev. St. Mo. 1879, § 1886, provides that upon the presenting of an affidavit for a continuance at a criminal trial, containing a statement of what the witness would testify if present, the opposing party may admit the affidavit as evidence and the trial shall not be postponed. Defendant at a second trial offered an affidavit for continuance, which had been used at a former trial, as evidence. Held, that the law was unconstitutional, and even while in existence, it was only an admission during the term at which it was made, and the affidavit was properly excluded.

4. SAME — INSANITY AS A DEFENSE — REBUTTAL EVIDENCE.

The defense on the trial of an indictment for murder was insanity. Testimony was introduced showing the wild action and demeanor of defendant, and that it had been aggravated by the belief that deceased had debauched defendant's wife. The state introduced testimony that prior to his marriage, he wanted to rent a room in which he proposed to keep the woman he afterwards married, for the purpose of general prostitution for his pecuniary benefit. Held, that it was properly admitted.

5. SAME — OPINION — PERSONS NOT EXPERTS.

In the trial of an indictment for murder, where the defense was insanity, evidence of persons not experts, having favorable opportunities of observation, was admitted as to their opinion respecting the sanity of defendant. Held, this was not error.²

6. SAME — INSTRUCTIONS.

In the trial of an indictment for murder it was in evidence that on the day of the homicide defendant had exhibited his pistol and said he was going to kill deceased that day; that he asked him to walk with him to his house, and while deceased was sitting on the fence, had shot him from behind the door of the house. The defense was insanity. Held, that an instruction that defendant was either guiltless, by reason of his insanity, or guilty of murder in the first degree, was proper.

Appeal from circuit court, Clark county.

This was the trial of an indictment against John E. Bryant for murder in the first degree. He was convicted, and appealed.

B. G. Boone, Atty. Gen., and T. L. Montgomery, for the State. N. T. Cherry, G. K. Bates, W. F. Givens, and McKee & Jayne, for defendant.

SHERWOOD, J.³

Tried on a charge of murder in first degree, the defendant interposed the plea of insanity, resulting in a hung jury on the first trial, and on the second trial in a verdict of guilty in manner and form as charged. Judgment and sentence accordingly. Appealing from this judgment, the defendant assigns as error the following: (1) The refusal to grant the defendant a continuance. (2) The accepting of certain persons as jurors, and the retaining of them on the panel of 40 from which the trial jury was selected. (3) The exclusion of certain evidence. (4) The admission of certain evidence. (5) The giving of certain instructions on behalf of the state, and the refusal to give certain instructions on behalf of the defendant. Of these assignments of error in their order.

1. The application for a continuance will now be discussed. The homicide occurred February 8, 1886; at the ensuing April term, the mistrial occurred, and then the cause went over to October term next thereafter, when the trial now in question took place, beginning on the eighth of October. Section 1884 of our statute, in relation to such applications in criminal causes, is as follows: `Sec. 1884. A motion to continue a cause on the part of the defendant on account of the absence of evidence must be supported by the oath or affidavit of the defendant or some reputable person in his behalf, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must give his name, and show where he resides or may be, and the probability of procuring his testimony, and within what time, and what facts he believes the witness will prove, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured, and that the witness is not absent by the connivance, procurement, or consent of the defendant, and what diligence, if any, has been used in the premises by the defendant, and that the application is not made for vexation or delay, merely, but to obtain substantial justice on the trial of the cause." It will be found, on an examination of the affidavits offered in support of the motion for a continuance, that they do not come up to the statutory standard. First. They do not show "the true materiality of the evidence expected to be obtained," because it is nowhere alleged in the affidavits that the defense of insanity would be interposed, and unless this were intended to be done, the evidence offered would be wholly immaterial. State v. Pagels, 4 S. W. Rep. 931, (decided at last term.) Second. It is not alleged therein that the affiants believe the testimony desired will be true. Third. There is no allegation that the witnesses are not absent by the connivance, procurement, or consent of the defendant. Fourth. It does not appear that subpoenas could not have been issued even on the twentieth of August, 1886, the date of the reception of the postal-card, in time to have secured the attendance of witnesses living in Boone and Saline counties. For these reasons the exercise of the proper diligence has not been shown, and the application was properly overruled, even should the element of judicial discretion in these matters be ignored. State v. Wilson, 85 Mo. 134, and cases cited.

2. The next point for determination is whether any error occurred in selecting those persons who were to compose the panel of 40 from which the trial jurors were afterwards selected. After the first one of those summoned as jurors had been examined touching his qualifications, the defendant's counsel gave in evidence the account of the trial and evidence as given by the witnesses and published in the Herald, Gazette, and another paper, the week following the first trial, these being the papers referred to by the jurors, and these papers contained substantially the same testimony as that adduced at the second trial. Our statute touching the matter in hand is contained in section 1897. "Sec. 1897. It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried; but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn." By this statute are the rights of this defendant, and the qualifications of those who composed the panel, to be determined. As was observed in State v. Culler, 82 Mo. 623, "the rule of the statute there is the absolute disqualification of every one offered for a juror who has formed or delivered an opinion on the issue, etc.; the exception is where such opinion is founded only on a rumor or newspaper reports, and even then the exception has no operative effect if they have been such as to prejudice or bias his mind." As the defendant was entitled to a full panel of qualified jurors before he was required to make his peremptory challenges, (State v. McCarron, 51 Mo. 27; State v. Waters, 62 Mo. 196; State v. Davis, 66 Mo. 684,) it therefore becomes important to learn whether there was a full general panel from which to make selection. Hypothetical opinions entertained or expressed by a juror do not, as a rule, disqualify. 2 Grah. & W. (N. T.) 437, and cases cited. The leading case on this subject is that of Burr, indicted for treason. Chief Justice MARSHALL there said: "Light impressions which may be supposed to vield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no objection to a juror; but those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him." 1 Burr's, Tr. 416. The result of many authorities is thus succinctly stated by the text writers already referred to. "The true doctrine is that if the juror's conceptions are not fixed and settled, nor warped by prejudice, but are only such as would naturally spring from public rumor, or newspaper report, and his mind is open to the impressions it may receive on the trial, so as to be convinced according to the law and testimony, he...