State v. Griffin

• Decision Date: 31 October 1885
• Citation: 87 Mo. 608
• Parties: THE STATE v. GRIFFIN, Appellant.
• Court: Missouri Supreme Court

87 Mo. 608

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.

HENRY, C. J.

The defendant was indicted in the Greene circuit court for the murder of one John Conroy, in February, 1883. On his application a change of venue was awarded to Christian county and the cause was tried at the August term, 1883, of the Christian circuit court, and resulted in the conviction of defendant, and his sentence to the penitentiary for a term of fifty years. From that judgment he has appealed.

The first point made, and here for the first time made, is that the record does not show that the grand jury which found the indictment was chosen and summoned according to law. Sections 2784 and 2785 of the Revised Statutes of 1879, are not materially different from the provisions of the act of the General Assembly approved March 15, 1873, on the same subject, which, in the State v. Pitts, 58 Mo. 556, and The State v. Knight, 61 Mo. 373, were held to be merely directory, and on the authority of these cases, this question must be ruled against the appellant.

The objection that the names of all the material witnesses for the state were not indorsed upon the indictment came too late. It should have been made on a motion to quash the indictment. State v. Roy, 83 Mo. 268.

Another alleged error is that the court refused to permit the accused to show, by cross-examination of one Hooper, that the witness had been in places in Springfield, where there was gambling, in company with Conroy, the deceased, and also that witness had played cards in Springfield, and who was present. It was wholly immaterial whether the witness or Conroy played cards or not. Their innocence or guilt of any other crime was not in issue in this cause.

The instruction given by the court, number four, is complained of as meaningless and misleading. It declares that: “A danger existing only in the imagination of the accused will not excuse or justify the killing of Conroy. There must have been an apparent danger, affording a reasonable ground for apprehension, on the part of defendant, that unless he killed, or disabled Conroy, his own life or limbs were in imminent peril. Whether the appearances of danger to the accused were such as to afford such reasonable ground of apprehension, is a question for the jury.” We see no objection to the instruction.

It is objected to the seventh instruction that it tells the jury they should, in connection with other facts in evidence in the case, in determining his guilt, or innocence, consider the fact, if found, that after he killed Conroy defendant fled or concealed himself. The flight of the party accused is a circumstance tending to prove guilt and should be considered by the jury, and we see no impropriety or error in giving the instruction complained of. The objection urged to the ninth instruction is its brevity. We have not had the pleasure of considering many instructions of which this complaint could be made. The one in question is to the effect, that insulting epithets, or opprobrious words, would not justify an assault. That is a correct proposition of law, and the instruction is commendable for the few words employed to announce it. The tenth instruction, it is alleged, is not based upon any testimony in the case. Counsel have overlooked the testimony of Patterson, who testified that the accused told him that he threw his pistol in Peacher's...