98 S.W. 16 (Mo. 1906), The State v. Church

Citation:98 S.W. 16, 199 Mo. 605
Opinion Judge:BURGESS, P. J.
Party Name:THE STATE v. CHURCH, Appellant
Attorney:Claude R. Ball and P. H. Cullen for appellant. Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
Case Date:December 04, 1906
Court:Supreme Court of Missouri

Page 16

98 S.W. 16 (Mo. 1906)

199 Mo. 605



CHURCH, Appellant

Supreme Court of Missouri, Division Two

December 4, 1906

Appeal from Warren Circuit Court. -- Hon. Nat. M. Shelton, Judge.


Claude R. Ball and P. H. Cullen for appellant.

(1) The judge who was disqualified to sit in this case, on being disqualified, set the case for immediate hearing, and the judge who tried this case immediately took the bench and without regard for the rights of defendant, called the case for trial, which was an abuse of judicial power. Such act was against reason, right and justice. (2) The court erred and abused its discretion in refusing defendant's application for a continuance. (3) The court erred in refusing defendant a special inquisition to try his insanity, two applications having been filed, one on June 20th, which was duly verified by competent physicians, and the application renewed on the 27th of June, 1904, as the law does not countenance the trial of an insane person for any offense until he recovers. State v. Klinger, 43 Mo. 130; U. S. v. Lancaster, Mey. Fed. Dec. 190; Frith case, 22 How. St. Tr. 307; State v. Reed, 41 La. 581; Freeman v. People, 4 Denio 9; Taffee v. State, 23 Ark. 24; State v. Peacock, 50 N. J. L. 34; Kinloch's case, 18 How. St. Tr. 395; People v. Farrell, 31 Cal. 576; Underwood v. People, 32 Mich. 1; State v. Harrison, 36 W.Va. 729; French v. State, 93 Wis. 325; Nobles v. Georgia, 168 U.S. 398. The question involving the right of one charged with crime to have his insanity inquired into is most thoroughly discussed in 38 L. R. A. 577. (4) Public propriety and decency, if for no other reason, demands that an inquiry as to the present sanity of a person accused of a crime be had before a jury before he is put upon trial. Carr v. State, 98 Ga. 89; Spann v. State, 47 Ga. 549; Baughn v. State, 38 L. R. A. 577. (5) Where there is doubt of the sanity of a person accused of crime, he must not be put upon his trial, but a jury must be impaneled to try the fact. In this case the judge who tried this case admitted in overruling the defendant's application for a jury to try his insanity that the evidence was plain that defendant was insane, but that that was a defense. 4 Bl. Com., 24, 25, 396; Bishop, New Crim. Proc., 666, 667; State v. Peacock, 50 N. J. L. 34; Guayando v. State, 41 Tex. 626; Gruber v. State, 3 W.Va. 669. (6) The court erred from a legal, moral and decent standpoint in overruling the application. Lee's case, 1 Lewin C. C. 239; Gruber v. State, 3 W.Va. 699; Weber v. Com., 119 Pa. St. 223; People v. McElvaine, 125 N.Y. 596; State v. Harrison, 36 W.Va. 729. (7) The right to inquiry into insanity of defendant is by implication part of the bill of rights. State v. Wade, 161 Mo. 441; Bishop, New Crim. Proc., 666, 667; Re Spies, 123 U.S. 153; Ball v. U.S. 140 U.S. 129; Schwab v. Berggreu, 143 U.S. 448. (8) The record in this case will not sustain a conviction for it does not show that defendant was present on June 27th when his motion to determine his insanity was denied, and it does not show that defendant was present when the twelve jurors were called and sworn to try this case. The record is insufficient and does not show the qualification of forty jurors; neither does it show that twelve jurors were ever selected to try the case; neither does it show that any jury was selected to try this case, and for this reason the judgment should be reversed. State v. Schoenwald, 31 Mo. 147. (9) The court erred in accepting the forty jurors named in the statement of this case, because from their examination it was shown that they had read the defendant's written confession published in the papers, which publications were a true copy of the confession set out in our statement and introduced in evidence. (10) Each and every juror, from his examination, showed that he was both biased and prejudiced and had made up his mind as to the guilt of defendant. (11) The twelve jurors who actually sat in this case showed by their examination that they were not a qualified jury to sit in the case, and the court erred in accepting them because the jury that actually tried the case were guilty of misconduct for the various reasons set out in defendant's motion for a new trial. State v. Avery, 113 Mo. 503; State v. Collins, 86 Mo. 249; State v. Culler, 82 Mo. 623; State v. Foley, 144 Mo. 609. (12) The court erred in admitting the written confession signed by defendant to be read to the jury for the reason that counsel objected to its introduction on the ground that defendant was at the time of signing insane, and offered to introduce proof to the court, which was refused. State v. Kinder, 96 Mo. 548; State v. Young, 119 Mo. 518; 6 Am. and Eng. Ency. Law, 556, 559. (13) The admissibility of a confession depends upon mental capacity to make it. 6 Am. and Eng. Ency. Law, 556-559. (14) Statements made by the accused in writing are not admissible for any purpose. State v. Marshall, 36 Mo. 400. (15) A person not capable of committing crime is not capable of making confessions. 6 Am. and Eng. Ency. Law, 569. (16) In reason and justice there should be no trial if the defendant is insane, or from any other cause incapable of understanding the proceedings and making his defense. 1 Bishop's New Crim. Proc., 950. (17) Insanity, whether proceeding from drunkenness or any other cause, renders the confession inadmissible. Bishop's New Criminal Proc., 1229; State v. Feltes, 51 Iowa 495. (18) The capacity to be tried, which must exist at the time of trial, differs from that for crime required when a wrongful act is done. If an indicted person is not sane, the court cannot go on with the case; or if he becomes insane after the trial commences, he can neither be sentenced nor, if sentenced, punished while his insanity continues. 1 Bishop's New Crim. Law (1892 Ed.), 396; State v. Jones, 13 Ala. 153; State v. Ah Ying, 42 Cal. 18; State v. Patton, 12 La. Ann. 288; 2 Bishop's Criminal Procedure, 666-668. (19) The court erred in refusing defendant the right to cross-examine his witness, George Crouch. State v. Coate, 173 Mo. 396. (20) The court erred in not reprimanding counsel for the prosecution when he referred to the defendant as a "culprit," which was error. State v. Taylor, 134 Mo. 157; State v. Bobbst, 131 Mo. 328. (21) The court erred in permitting doctors to testify as to the condition of defendant both physically and mentally, for the reason that they called upon defendant and examined him without an order of court and without knowledge or consent of defendant's counsel, for the reason that such examination, when made by the doctors voluntarily, is privileged, and not admissible. This proposition is so simple that authorities to sustain it are unnecessary. (22) The court erred in permitting the prosecuting attorney to testify to conversations with defendant over his objection. State v. Hagan, 164 Mo. 654. (23) The court erred in refusing to instruct the jury that if they found from the evidence that defendant was insaneat the time of killing and was still insane, he would be sent to and confined in the state hospital for the insane. (24) The defendant, as shown by the record in this case, and as recited in his motion for a new trial, has been denied the constitutional right of trial by an impartial jury of Warren county, as is guaranteed by the 6th amendment of the Constitution of the United States and section 22, article 2, of the Constitution of Missouri. Hunt v. Searcy, 167 Mo. 177. (25) The record shows that defendant has been tried and convicted without due process of law, in this, that defendant has been denied the right to appear and defend in person. (26) The court erred in overruling defendant's motion for a new trial upon the ground of newly-discovered evidence. State v. McKenzie, 177 Mo. 716. (27) This case should be reversed because it does not affirmatively appear, from the record, that defendant was personally present, either at the time the jury was impaneled or at the time a jury was sworn to try the case. Neither does the record show that defendant was personally present at the beginning of the trial. This omission in the record must result in the reversal of the judgment of conviction, under the statute. Sec. 2610, R. S. 1899; State v. Schoenwald, 31 Mo. 147.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) Much stress is laid by appellant on the fact that Judge Johnson set this case for trial at the time that he called upon Judge Shelton to try the case. How appellant could have been injured by that act, it is impossible to understand. Counsel seemed to have over-looked our statute, which provides that whenever a change of venue is granted on account of the prejudice of the judge, "the judge of said court shall set the case down for trial on some day of the term, or on some day as early as practicable in vacation, and notify and request the judge of some other circuit to try the cause; and it shall be the duty of the judge so requested to appear and hold the court at the time appointed for the trial of said cause," etc. R. S. 1899, sec. 2597. (2) Defendant's application for a continuance was properly overruled, as no diligence whatever was shown. State v. Cummings, 88 S.W. 706; State v. Dusenberry, 112 Mo. 291; State v. Kindred, 148 Mo. 281; State v. Woodward, 182 Mo. 415; State v. Sublett, 191 Mo. 170. (3) Defendant filed two applications, each one asking the court to summon a jury to pass on the question of defendant's insanity. But the statute, which defendant attempted to call to his aid, is not applicable to the facts developed by defendant's evidence. Defendant's position in this case was a shifting one, and anything but consistent. Defendant's attorney first filed an affidavit stating that defendant was insane; and afterwards amended the...

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