Lisle v. State

• Decision Date: 31 August 1840
• Citation: 6 Mo. 426
• Parties: LISLE v. THE STATE.
• Court: Missouri Supreme Court

6 Mo. 426

LISLE

v.THE STATE.

Supreme Court of Missouri.

August Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY.

CLARK and DAVIS, for Appellant. It is contended in behalf of the prisoner, that a new trial should have been granted (after setting aside the verdict of the jury) by the Circuit Court, for divers reasons: The first of which is, that no copy of the indictment was furnished the prisoner or his counsel, before the trial in the Circuit Court. See Rev. Statute, p. 485, § 1. It is not a waiver of any of the legal rights of the prisoner, that he went to trial without demanding a copy of the indictment. See 18 Johns. R. 212, The People v. McKay. The next point is, had the prisoner a trial by an impartial jury as prescribed by the Constitution? See p. 27, Declaration of Rights, § 9 (in Statute book). Also see Statute, p. 490, §§ 11, 12. Whatever is good cause of challenge to a juror, if not discovered till after verdict, is good ground for a new trial. See Vance v. Heaslet, 4 Bibb, 191; McKinley v. Smith, Hard. 167; Pierce v. Bush, 3 Bibb, 347. The affidavit of David Morrow, a juror, was improperly received by the court below, on the motion for a new trial to prove that he was an impartial juror. See Vance v. Heaslet, 4 Bibb, 191.

J. M. GORDON, Circuit Attorney, for the State. As to the first point presented, I insist that the law is well established that the affidavit of a juror cannot be received after he has consented to the verdict to explain the reasons or grounds either of law or fact, upon which he found his verdict, for the purpose of impeaching or setting it aside. See 1 Hen. & Mun. 385; Hardin R. 586; 4 Johns. R. 487; 3 J. J. Marshall R. 489. The second point is equally well established, that although the affidavit of a juror cannot be read to impeach his verdict, it is always competent for the purpose of supporting and sustaining his verdict. 4 Johns. R. 487; 3 J. J. Marshall's R. 395. The third point is as to competency of David Morrow, as juror. I insist that although he had formed and expressed an opinion, yet as that opinion was founded on rumor, and was not such as biased or prejudiced his mind, he was a competent juror. Rev. Code, p. 490, § 11. By that section of the law, the juror is necessarily made the judge whether he has bias or prejudice on his mind. But, in regard to the fourth question, admitting that Morrow, the juror, was incompetent, and that there was cause for challenge to the juror, yet as the prisoner had full knowledge of the fact, when the juror was sworn on the voir dire and he neglected to interpose his right of challenge, either for cause or peremptorily, he cannot avail himself after verdict, of the incompetency of the juror. 3 Marshall R. 330; 1 Binney, 27; 4 Bibb, 272; 4 Littell's R. 118; 4 Barn. & Ald. 430; 8 Barn. & Cres. 417. My answer to the fifth point presented is, that the statute which requires the clerk of the court to deliver to the prisoner or his counsel a copy of the indictment, at least forty-eight hours before he shall be arraigned on the indictment, is merely directory. See Rev. Code, p. 485, § 4, art. 5, under the head of Practice and Proceedings in Criminal Cases, and that the prisoner waived his right to a copy of the indictment, by pleading and going to trial without objection. It is too late after verdict for the prisoner to complain that a copy had not been furnished him or his counsel before the trial. Foster's Crown Law, 229-30; Chitty's Crim. Law p. 405; 1 East Pleas of the Crown, 112; 3 Howard's Miss. R. 429; 1 Mo. R. 717; 7 Wend. R. 417. By going to trial without objection he admitted that he had a copy sufficient for the purposes intended by the law, or that he had no defense to set up which required the iuspection of a copy. As to the sixth point. I insist that as the evidence has not been saved by the bill of exceptions, this court will not undertake to decide whether the court below committed error, in not giving the instructions asked by the circuit attorney, but will presume that the court below did right until the contrary is made to appear to this court.

NAPTON, J.

The appellant was indicted for the murder of one Hiram Wilson, was tried and convicted of murder in the first degree. The prisoner filed his motion for a new trial, and in support of said motion introduced certain affidavits. The affidavit of Mr. Tracy stated, that on the morning of the day on which the trial of Lisle commenced, he saw David Morrow (one of the jurors) in the street, near his house, and inquired of him what was done with Lisle, who answered that he did not know he ought to express any opinion--but remarked that it did not make any difference, as he supposed all the jurors had made up their opinions. That he had made up his opinion and was for hanging Lisle. This was, as the affiant believed, said in reply to the father of witness who was in his company. This affidavit was corroborated by another affidavit of Ellery Tracy, the father of the first affiant, who deposed substantially to the conversation with Morrow, as the first affiant had represented it. The affidavit of William Kanes was also introduced, who deposed that about a week befere the term of the court at which Lisle was tried, David Morrow was at his house, and had a conversation with the affiant about the probable guilt of said Lisle, in which conversation Morrow among other things said that “Lisle, was a fool for not running away when he was out of jail, for if he was not hung, it was useless to have laws or a jail.” The affidavit of the prisoner was also read, which stated that at the time the jury were sworn, he had no knowledge that Morrow, one of the jury, had before that time expressed an opinion, as to the guilt or innocence of the affiant, but had never ascertained that fact, until after the verdict of the jury was rendered. The State then offered the affidavit of Morrow, the juror, who declares that after he had been sworn to answer questions, he, with others was asked whether he had formed or expressed an opinion in relation to the guilt or innocence of the accused, to which he replied that he had, but that his opinion was founded on rumor only. The affiant further stated, that that opinion had not been formed from anything he had heard from any witness in the cause, or from any personal knowledge of the facts--that that opinion had no bias or prejudice on his mind in rendering his verdict, but he made up his opinion from the facts in evidence, and moreover that he entertained no ill will or malice against the accused. So much of this affidavit as related to what the juror had stated on his examination was admitted to be read; but the remainder was excluded. It also appeared in evidence, on the motion for a new trial, that no copy of the indictment had been given to the prisoner, or his counsel, before ordering the trial of this cause, nor had any been demanded by the defendant or his counsel, nor had any objections been made to going into trial for want of such copy. On this...