State v. Hart

• Decision Date: 31 October 1877
• Citation: 66 Mo. 208
• Parties: THE STATE v. HART, Appellant.
• Court: Missouri Supreme Court

66 Mo. 208

THE STATE

v.HART, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Webster Circuit Court.--HON. W. F. GEIGER, Judge

Indictment for a Felonious Assault.

It appeared from the evidence adduced at the trial, that on the 14th day of March, A. D. 1873, one George W. Davis and the appellant were both in the town of Billings, a small town in the northwestern portion of Christian county, attending the preliminary examination of certain parties charged with an assault upon Davis. This was on Friday, and the assault on Davis had been made on the Sunday preceding, during which he was shot through the right arm, which he was then carrying in a sling. Davis was sitting on a box in front of a store, when he saw Hart, and remarked that he, Hart, was at the bottom of all this devilment, or words to that effect. Hart replied by saying, that Davis was a d--d liar. Hart thereupon drew his revolver from its scabbard, and pointing it at Davis, snapped it, but it did not discharge. The witnesses differ as to whether Davis had drawn his pistol prior to this time or not. Some of the witnesses state that Davis then drew his revolver, and that the appellant snapped his twice more at Davis. Both of the parties were then arrested and disarmed. The defendant's revolver was afterwards restored to him.

The State also offered the indictment, recognizance of defendant and order of record forfeiting the same, and to show by one Langston that he had found him in Texas after a long search, and brought him back. This was objected to, but was admitted.

C. B. McAfee for appellant.

1. The point made in arrest of judgment is that the record shows on its face that the law of 1873, (that had repealed all other statutes on the subject,) was wholly disregarded in organizing the pretended grand jury, and the decisions of our courts, on this subject, are not applicable, for there was no grand jury to challenge; the judge had no authority to make the pretended organization. It does not appear from the record that the sheriff had qualified, by taking the necessary oath, before he selected the pretended grand jury.

2. The probate and common pleas court of Greene county, was abolished by the adoption of the new constitution, and it had no jurisdiction to make any orders in this case.

3. I suppose that perhaps this is the first time in the history of criminal practice in this country, that it has been held that the indictment is competent evidence to prove defendant's guilt on an issue made by the plea of not guilty; and it will not answer to say that defendant was not injured by this testimony, because the State has had the benefit of it, and has the ruling of the court in presence of the jury, that it is competent evidence, and is in this matter also estopped from saying that it did not have the effect intended. Besides the average juror is constitutionally prone to the belief that the mere fact of indictment of an individual is prima facie evidence of guilt.

4. The testimony of the witness Sullivan was incompetent; because, if defendant was not implicated in the night shooting, then all testimony concerning the same was improper and calculated to prejudice defendant. If he was charged with these other assaults also, then it was improper testimony, because he was on trial for a different and separate assault. There is but one count in the indictment.

J. L. Smith, Attorney-General, for the State.

1. The testimony shows that Davis and Hart entertained very bitter feelings towards each other, and that various altercations had taken place between them previous to this time, and that on Sunday prior he had been assaulted and shot through the arm, and that he wore his right arm in a sling on the day of the assault in this case. Having in view all these facts, it clearly appears that this evidence was not only admissible, but imperatively necessary to properly inform the jury of the relations that existed between the parties, and as a circumstance tending to show that Hart made the “assault with design and intent, him, the said George W. Davis, then and there, willfully and feloniously to kill and murder.” For the same reasons was the evidence of the assault upon Davis in the night of the same day, admissible. It was also a part of the res gestae. All the proceedings at Billings on that day were part of the same assault, and all the circumstances of that day's proceedings were part of the res gestae.

2. The objections to the evidence as to defendant's flight to Texas were properly overruled. It is well settled that when a person stands charged with a crime, and he seeks to escape a trial by flight, the evidence of such flight is competent as a circumstance tending to show his guilt. The objection, that the defendant fled for the reason that he was indicted for the murder of Davis, is disposed of by the twelfth instruction, given at his request, which told the jury “that although they might believe from the evidence that defendant forfeited his bond for appearance for trial in the Greene circuit court, on the charge for which he is now on trial, and was subsequently found in Texas, and brought back, and attempted to escape from the witness Langston; if they believe that such absence in Texas, and failure to appear, and attempt to escape was not on account of the present charge, now on trial, and was not to avoid trial on the same, then such facts are no evidence of guilt in this case.”

3. The second ground of the motion in arrest of judgment, is that “the indictment was not returned by a legally constituted grand jury as required by law.” The April term, 1873, of the circuit court of Christian county, at which this indictment was found, convened on the third Monday in April of that year, (See Acts of 1873, page 40), which was on the 23rd day of that month. Prior to March 15, 1873, the grand jurors throughout the State were selected and summoned by the sheriffs of the respective counties. 1 W. S., page 798, § 8. On said March 15, 1873, an act was approved to take effect, from and after its passage, providing that grand jurors should be selected by the county courts, thirty days before the commencement of the circuit court, &c., (Acts of 1873, page 46). When the circuit court of Christian county met in April, 1873, it appearing that the county court had failed to comply with this act, it ordered the sheriff to summon eighteen competent grand jurors. This was done, and the men so summoned were duly sworn, charged and empanneled, and returned, among others, the indictment herein. No objections were made to the grand jury until after the trial, and it was then too late. Wag. Stat., 797, § 3; 1081, § 2; 1081, § 3; State v. Bleekley, 18 Mo. 428.

HENRY, J.

The defendant was indicted at the April term, 1873, of the Christian circuit court, for a felonious assault upon one George W. Davis. The cause was taken on a change of venue to the Greene circuit court, thence to the probate and common pleas court of Greene county, and thence to the circuit court of Webster county, in which, at the March term, 1877, there was a trial resulting in the conviction of defendant. After unsuccessful motions made by him for a new trial, and in arrest of judgment, he appealed to this court.

1. CRIMINAL LAW: grand jury: sheriff

The term of the Christian court, at which defendant was indicted, commenced on the 21st day of April, 1873, and the county court of that county having failed to select a grand...