State v. Ward

• Citation: 74 Mo. 253
• Parties: THE STATE v. WARD, Appellant.
• Decision Date: 31 October 1881
• Court: United States State Supreme Court of Missouri

74 Mo. 253

THE STATE

v.WARD, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

G. S. Van Wagoner and A. W. Alexander for appellant.

D. H. McIntyre, Attorney General, for the State.

SHERWOOD, C. J.

The defendant appeals to this court, having been convicted in the trial court of murder in the first degree. Annie Lewis is the name of the person he is charged with having murdered.

I.

The ruling was correct which denied defendant's motion for a further continuance. He had previously obtained two continuances, and the third application disclosed none of that diligence which the law requires. The cause was set for May 17th, 1880, yet notwithstanding the fact of two continuances having been granted, no steps were taken and no subpœnas issued preparatory to the coming trial till May 10th, but one short week before the trial above mentioned. All of the witnesses named in the application appear to have resided in St. Louis at the time of defendant's arrest in 1879, and their residence was then known to him, and earlier movements should have been taken to have secured their attendance. What one of the witnesses would have sworn was admitted by the circuit attorney; it was agreed by him that the absent witness, Dick Jenkyns, would swear, if present, that at the time of the killing, and for many days next prior thereto, the defendant was in an unsound state of mind; that his talk was wild, incoherent, irrational; that his conduct during all of said time was utterly different from his ordinary conduct; that it indicated a total lack of purpose and of care for himself or of aim or regard for his future; that his mind seemed to be in a tumult; that it was so disordered and unsound that he was unable to control his thoughts, his talk or his conduct, and did not reflect upon or distinguish between right and wrong, and was not responsible in morals for his language or his acts. The other absent witnesses were expected to establish the same things, and yet so little importance was attached by defendant's counsel to the agreement of the circuit attorney, that the admission he made as to what Jenkyns would swear was not, as it might have been under the statute, offered by the defendant in evidence.

So frequently has this court passed upon the question of propriety of refusing a continuance in criminal cases, that it is unnecessary to do more now than to refer to some of our former adjudications where similar applications were unsuccessful, and to say that granting a continuance rests largely in the sound discretion of the trial court, a discretion not to be interfered with unless unsoundly exercised; and to say further, that the measure of diligence which the law imposes on one arrested on a criminal charge remains in this instance unfulfilled. State v. Lawther, 65 Mo. 454; State v. Able, 65 Mo. 357; State v. Simms, 68 Mo. 305; State v. Lange, 59 Mo. 418; State v. Whitton, 68 Mo. 91; State v. Hollenscheit, 61 Mo. 302; State v. Sayers, 58 Mo. 585; State v. Burns, 54 Mo. 274.

II.

There was no variance between the allegation as to the homicide and the evidence offered in support of the allegation. The indictment alleges the assaulting and mortal wounding of Annie Lewis, with a pistol, occurred on the 31st day of August, 1879, and that of “said mortal wound the said Annie Lewis did then and there instantly die.” The words “then and there” refer to the date already mentioned, and have the same effect as if the date were actually repeated. Whart. Crim. Plead. and Prac., § 131, and cases cited. The evidence shows that death ensued twelve hours after the shooting and on the same day the shooting occurred, thus fully supporting the charge in the indictment. The word “instantly” may be rejected as surplusage. And under our statute even had there been a variance between allegation and proof “in the name or description of any matter or thing whatsoever,” “named or described,” in the indictment, such variance would be no ground for acquitting the defendant or for reversing the judgment, “unless the court before which the trial shall be had, shall find that such variance is material to the merits of the case, and prejudicial to the defense of the defendant.” R. S. 1879, § 1820; State v. Wammack, 70 Mo. 410.

Besides all that, time is not of the essence of the offense in a case of this sort, and where this is so the validity of the indictment cannot be questioned, nor the judgment thereon be stayed, arrested or in any manner affected because the date of the offense is omitted. Our statute is express on this point. R. S. 1879, § 1821; State v. Wilcoxen, 38 Mo. 370; State v. Stumbo, 26 Mo. 306. And by the terms of the section just cited the validity of an indictment cannot be overthrown, nor a judgment based thereon be stayed, etc., “for want of the averment of any matter not necessary to be proved.” If it be not necessary to allege any date at all, then certainly not necessary to prove one, nor material if a date different from that alleged be proved. State v. Magrath 19 Mo. 678.

III.

It was too late after verdict to object for the first time to those who composed the trial jury. In order that a defendant may avail himself of any error or irregularity, any want of compliance with proper methods of procedure in the selection and empaneling of the jury, his objections and exceptions must be timely ones. State v. Marshall, 36 Mo. 400. Moreover, this court has repeatedly held statutes in respect to the empaneling of juries in criminal cases directory, and that it will refuse in any event to interfere unless some prejudice to the defendant from a lack of compliance with statutory provisions be...