87 Mo. 608 (Mo. 1885), State v. Griffin

Citation:87 Mo. 608
Opinion Judge:HENRY, C. J.
Party Name:THE STATE v. GRIFFIN, Appellant.
Attorney:J. M. Patterson and T. J. Gideon for appellant. B. G. Boone, Attorney General, for the state.
Court:Supreme Court of Missouri
 
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Page 608

87 Mo. 608 (Mo. 1885)

THE STATE

v.

GRIFFIN, Appellant.

Supreme Court of Missouri.

October Term, 1885

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

AFFIRMED.

J. M. Patterson and T. J. Gideon for appellant.

(1) The record fails to show that the grand jury was chosen and selected according to law, and the judgment for this reason should be reversed. R. S., 1879, secs, 2784-5. (2) The names of all the material witnesses for the state were not indorsed on the indictment. R. S., 1879, p. 304, sec. 1802. (3) The trial court erred in not permitting the witness, Adolphus Hooper, to answer the several questions asked by defendant on cross-examination. (4) The fourth instruction for the state is meaningless, and was calculated to mislead and confuse the jury. (5) The seventh instruction for the state is error, for the reason it tells the jury they should consider certain evidence. (6) The ninth instruction for the state is too brief, and does not tell the jury what words spoken by Conroy would be sufficient for the defendant to act upon. (7) The tenth instruction for the state was not based upon any testimony in the case. (8) The eleventh instruction for the state was not based upon any testimony in the case and only helped to confuse and mislead the jury. (9) The instruction, defining the punishment for murder in the second degree, should not have been given, for the reason it was coaxing the jury to find a verdict that was not warranted by the evidence in the case. (10) The court erred in not giving the three refused instructions asked by the defendant. (11) The court erred in permitting the trial of the defendant to proceed without a prosecuting attorney to conduct it for the state; if the prosecuting attorney was absent, sick or disqualified to act, it was the duty of the court to appoint a suitable person as such, under section 519, Revised Statutes, 1879, page 82, and it was error to permit S. H. Boyd, J. J. Gideon, F. S. Heffernan and T. J. Delaney to appear and prosecute for the state. (12) The remarks of F. S. Heffernan in his closing argument for the state were improper. (13) The court should have granted a new trial because of newly discovered evidence.

B. G. Boone, Attorney General, for the state.

(1) There is nothing in the record to indicate that the grand jury was not drawn, summoned and empanneled in strict conformity with the statute. Statutes in relation to the summoning and empanneling of juries are directory. A strict compliance with their provisions is not necessary. State v. Knight, 61 Mo. 373; State v. Ward, 74 Mo. 253. The objection that a grand jury has not been drawn and summoned according to law, comes too late when made for the first time in a motion for a new trial State v. Jones, 61 Mo. 232; State v. Ward, supra; State v. Greenwood, 5 Porter 474; State v. Leaben, 4 Dev. 305. It is too late to raise the objection for the first time in the appellate court. Bass v. State, 37 Ala. 469; Floyd v. State, 80 Ala. 511; Huling v. State, 17 Ohio (N. S.) 538. (2) The objection urged by defendant in his brief that the names of all the material witnesses for the state were not indorsed on the indictment will not be considered by this court. This objection must be raised by a motion to quash the indictment. This was not done, nor was the error complained of, referred to in the motion for a new trial. No motion in arrest was filed. Vide, State v. Roy, decided February 3, 1885, 20 C. L. J. 157. Adolphus Hooper was one of defendant's witnesses. The objection that defendant was prejudiced, because he was not permitted to cross-examine this witness is absurd and meaningless. (3) The fourth instruction given by the court in regard to self-defence is a correct declaration of law and has repeatedly been approved. 2 Whar. Cr. L., sec. 1026; State v. Eaton, 75 Mo. 591; State v. Umfried, 76 Mo. 408; State v. Shippey, 10 Minn. 223; People v. Sullivan, 3 Selden (N. Y. Ct. App.) 396. (4) The seventh instruction given in regard to the flight of defendant after the homicide, is in harmony with instructions heretofore approved by this court on the subject. State v. Williams, 54 Mo. 170; State v. Mallon, 75 Mo. 355; State v. King, 78 Mo. 557. (5) The ninth instruction, given in regard to insulting words used by the deceased, was proper. Murray v. Boyne, 42 Mo. 472; 2 Bish. Cr. L. (5 Ed.) sec. 40, and cases cited; Whar. Cr. L. (4 Ed.) sec. 985; State v. Wood, 1 Bay 351; State v. Fuentes, 5 La. An. 427. (6) The tenth instruction given was authorized by the evidence. (7) The eleventh instruction given was also supported by the evidence. The instructions asked by defendant were properly refused by the court. The instructions given covered every phase of the case presented by the evidence, and the court was not required to give additional instructions, although they were correct. (8) Defendant's objection that F. S. Heffernan and others were not authorized to appear for the state in the absence of the prosecuting attorney is merely technical and without merit. The record discloses the fact that the prosecuting attorney was unavoidably absent, and that Heffernan and others " were permitted to prosecute for the state in this behalf." This was a sufficient compliance with section 519, Revised Statutes. (9) The remarks of the attorney alleged as error were not calculated to prejudice defendant, and he cannot complain. State v. Stark, 72 Mo. 37; State v. Hoffman, 78 Mo. 256. (10) The alleged newly discovered evidence would have constituted no defence, was merely cumulative and the motion for a new trial was properly overruled. Besides it is not shown that any effort was made to procure the attendance of the witness at the trial.

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