Fanning v. State

• Decision Date: 31 March 1851
• Citation: 14 Mo. 386
• Parties: FANNING v. THE STATE OF MISSOURI.
• Court: Missouri Supreme Court

14 Mo. 386

FANNING

v.THE STATE OF MISSOURI.

Supreme Court of Missouri.

MARCH TERM, 1851

1 CRIMINAL PRACTICE—TRIAL.— The 25th section, article 5th, Practice In Criminal Cases, requiring the discharge persona indicted and committed to prison, if not brought to trial, before the end of the second term of the court having Jurisdiction, held after indictment found, unless the delay happens on the application of the prisoners, or be occasioned by want of time to try the case at such second term, is applicable alone to pending indictments. In computing time under it, the period of confinement under previous indictments for the same offence which were dismissed by noils prosequi, or suspended by the finding of a subsequent indictment, must not be included.

2. EVIDENCE—ATTEMPT TO EBCAFB —An attempt by a prisoner to make his escape by using a false key, is admissible evidence against him.

5. SAUK—FORMER INDICTMENTS.—Records of former indictments against a prisoner for the same offense, which have been dismissed by nolle prosequi, or suspended by a subsequent Indictment, are not admissible evidence for him.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

It is contended : I. The indictment found at the July term of the Criminal Court, 1849, and upon which the defendant was tried and convicted, is defective, in not setting out the means by which the room of Patton was broken open and entered. Whether the inner door mentioned in the indictment was entered by means of false keys, or by picking the lock, or by forcing the lock or bolts, or by breaking the same down, does not appear from the indictment. The case of Conner v. State, decided at the present term of this court, is relied upon in support of this position.

II. The court erred in admitting illegal, irrelevant and Incompetent evidence. Tho evidence of Jennings, that the defendant escaped from the city prison in November, 1848, was illegal in any way in which it can be viewed. According to the position taken by the State, the indictments found in November, 1848, and in March and July, 1849, were for different offenses, and of which of these offenses does his escape from the city prison imply an admission of guilt? If the evidence is competent under any circumstances, which is here denied, it could only have been admitted on a trial on the indictment found in November, 1848, and which was abandoned in March, 1849. The evidence of Martin, jailor, is not sanctioned by any authority of law, and was undoubtedly introduced, not to prove guilt, but to prejudice the jury and increase the measure of punishment in case of conviction. Martin does not state when the keys, about which he testifies, were made. According to the decision of the court In the case of Conner v. State, the legal effect of the variance between the indictment found In November, 1848, and the facts in the case, is to can. stitute an offense different from the one charged in the Indictment of Match, 1849 ; consequently if these keys, &c., were made before the finding of the Indictment in March (and the defendant has been in jail since the 5th of February preceding), then, as is before contended, the implied admission of guilt attached to the evidence by the State, could only have been competent under the indictment found in 1848. But the evidence was admitted on a trial not under the last mentioned indictment, or for any offense charged by it.

III. The court erred in refusing the defendant license to put the following question to Martin: "Do you know he (defendant) has been trying to get a trial ever since he has been committed to jail? " The argument of the State is, that the attempted escape of the defendant impliedly admits by endeavoring to avoid the consequence of a trial. If this argument is seriously advanced the defendant had a right to rebut the presumption by proving by the same witness facts tending to show that so far from avoiding a trial, he had used his best endeavors to obtain a trial long before that time. If the object, however, was to create prejudice, it was competent to show facts calculated to remove it It was also error in the court to exclude the evidence that the continued delays and continuances of this cause had not been caused by the defendant, and that said delays were not caused by want of time to try the case. The evidence was competent in consequence of the course pursued by the prpsecu-tion„and to support the position that the prosecution of the indictment ought to be barred by lapse of time. j

IV. The court erred in refusing the Instructions asked for by the defendant. The indictment was not sustained by the proof, there being no evidence to show that the defendant entered the house of Bowen and Hurlbut, through an open door or aperture not made by him, which is necessary to show that the offense comes under the section of the statute upon which the indictment was drawn. This question is raised by the 1st and 2nd instructions asked for by the defendant and refused by the court.

V. The defendant was entitled to his discharge from the offense for which he was tried and convicted, because the indictment for that offense had not been prosecuted within the time prescribed by law. The indictments found at the March and July terms of Criminal Court were both in point of law and fact for the same offense, the act being the same in all respects as to time, place and persons. The defendant insists that he was, under any circumstances, entitled to his discharge at the end of the September term of the court, 1849. The affidavits filed in support of his motions for a discharge show clearly that no delay had taken place by any act of his own. The continuances in every instance were on the part of the State. If the doctrine of the circuit attorney be correct, that an indictment can be found upon one section of the statute, and the defendant confined in jail the time prescribed by law, entitling him to his discharge, and then his Imprisonment pro-longed by quashing that indictment and finding a new one, on another section, defining another degree of the same offense, the object of the statute, which is to carry out the constitutional right of every citizen to have a speedy and impartial trial, would be defeated. Under this construction of the law, a man might be indicted for the crime of burglary, and by keeping him in prison three terms under indictments framed successively upon each section of the statute, creating different...