McLean v. State

• Decision Date: 31 July 1843
• Citation: McLean v. State, 8 Mo. 153 (Mo. 1843)
• Parties: MCLEAN v. THE STATE.
• Court: Missouri Supreme Court

8 Mo. 153

MCLEAN

v.THE STATE.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO ST. LOUIS CRIMINAL COURT.

BLENNERHASSETT, for Plaintiff. 1. The court should have continued the trial of said cause until the January term, the affidavit of the said McLean, for that purpose, being entirely sufficient, and containing every allegation required by the statute. And, by reference to the testimony of Rucker, Coyers, and Hugh Rogers, the materiality of the testimony of Brown, on the account of whose testimony the motion was made, is apparent, and corroborates the truth of the affidavit. People v. Vermilyea, 7 Cowen, 525; 6 Cowen, 577; 5 Cowen, 15. 2. The jury, after they are sworn, should not have been permitted to separate until they had rendered their verdict. This is the rule in England, as also in this country. In the case of the King v. Stone, 6 Taunt. R. 530, which was an indictment for high treason, the court adjourned from night until next morning, the jury retired to an adjoining tavern, the bailiffs were sworn well and truly to keep the jury,--“neither to speak to them themselves, nor to suffer any other person to speak to them,” &c. And in Com. Digest, title Inquest, F., it is expressly laid down, that, after the evidence is given, the jury ought to continue together till they agree of their verdict, without cating, drinking, fire, or candle, or speaking with any one, &c. Then cases of necessity, as an affray, the falling of the house, &c., are given as justifying a jury in separating. In 4 Blacks. Com. 360, it is said, that when the evidence on both sides is closed, and, indeed, when any evidence has been given, the jury cannot be discharged (unless in cases of evident necessity), till they have given in their verdict. See also Gould's case in Fos. 27; Day's R. 287; 2 South. R. 827; Commonwealth of Virginia v. McCant, Va. Cases, 271; 2 Leigh. R. 750: Martin's case, Walker's Intro. to Am. Law, 640; Smith v. Thompson, 1 Cowen, 221, and note. 3. The court should have decided, as a question of law, whether the declarations of Floyd were admissible as evidence or not. This was refused to be done, and left to the jury as a question of fact. Greenl. 190, § 160; 1 Ch. Cr. Law, 570; 1 Starkie's R. 521-3; 1 East's P. C., 360; ibid. 358; 3 C. and P., 629; 6 C. and P., 386; 7 C. and P., 187-190; 1 Hawks, 444; 1 Leach, 504; 14 Eng. Com. L. R. 474, note, ibid., 494. 4. The dying declarations of Floyd were improperly admitted; the evidence being insufficient to show that they were made in extremis, and under a sense of immediate dissolution. Greenl., 188, § 158; ibid. 189, and cases in note 4; 1 East's P. C., 357; 6 C. and P., 386; ibid. 631; 7 C. and P., 187; 2 Russell on Crimes, 685; 14 Eng. Com. L. R. 494. 5. The evidence introduced on the part of the State was insufficient to warrant a conviction. If the fact, that the plaintiff in error assisted in digging Floyd's well, be omitted, the conviction then rests wholly upon the declarations of the deceased; and though we may concede, for the sake of argument, that those declarations were properly before the jury, yet it must be recollected that the person to be affected by them was not present when they were made, had not the power of a cross-examination; and that, from the circumstances necessarily attending the commission of such an offense, such confusion and surprise must have existed, as could not but lead to mistakes as to the identity of persons, and the omission of facts materially important to the completeness and truth of the narration. See Greenl. on Ev. 192; 1 Phil. and Am. on Ev. 305-6; 2 Johns. R. 356; 2 Poth. Obl. 255; 2 Starkie, 263.

S. M. BAY, Attorney-General, for The State.

1. That the court properly refused the second application for a continuance: 1st. Because the accused, in his affidavit, did not show that he had used due diligence to procure the attendance of Brown. 2nd. Because the facts which the accused supposed he could prove by said Brown were immaterial.

2. The Criminal Court did not err in permitting the jury to separate: 1st. Because at common law, it is matter of discretion with the court whether the jury should be kept together until all the evidence is received, or whether they shall be permitted to separate. 2nd. Because there is no evidence that the Criminal Court improperly or unsoundly exercised this discretion. See The King v. Worlfet et al., 1 Ch. R. 401, cited in 1 Cowen's R. 227; St. of Mo. 1835, title Practice and Proceedings in Criminal Cases, art. 6, § 14.

3. Although it is now settled that the court, and not the jury, are to decide whether under the circumstances of the case, the dying declarations ought to be admitted, yet it is evident that the deceased considered himself, at the time he made the declarations, in a dying condition, and past all hope of recovery, and actually made in such condition. Therefore, the evidence was clearly admissible, and the court will not reverse the judgment because the evidence was introduced in an irregular manner, particularly as it is not pretended that the defendant was not prejudiced by the manner in which the evidence was introduced.

4. Admitting that the declarations of the deceased were properly in evidence, then it is clear that the verdict is sustained by the evidence, for the declarations of the deceased, as to the identity of the defendant, and to the fact that the defendant was the person who gave him the mortal wound, are positive, and uncontradicted by any of the testimony.

5. The motion for a new trial was properly overruled, not only on account of the suspicious character of the testimony of Bartley, but of the utter insufficiency of the matter contained in the affidavit.

TOMPKINS, J.

At the September term of the Criminal Court for St. Louis county, the appellant, James McLean, was indicted for murder in the first degree, and at the November term, of that court, next succeeding, he was tried and found guilty. To reverse the judgment of the Criminal Court, this appeal is prosecuted.

In the bill of exceptions, it appears that during the said term of November, to-wit: on the 12th day of December, 1842, he prayed a continuance of his cause, and at the same time filed his affidavit, that one James Brown is a material witness for him, the defendant, and that he could not safely go to trial without the evidence of said Brown; that some two or three months since, the said Brown went to Galena on business, but with the intention of returning to St. Louis, his place of residence on or about the first of November last past; that said Brown had not returned to St. Louis, and that the affiant had good reason to believe Brown would return at the next term of the court, &c. that the affiant expected to be able to prove by said Brown, that he and Brown slept together in the stable of one Long, in the city of St. Louis, on the night that Gabriel Floyd, the deceased, was murdered, and for whose murder the affiant was indicted, from the hour of ten of the clock of that night till the next morning, when the affiant was arrested, &c. The court overruled the motion of a continuance, and proceeded on that day to impannel a jury. Seven jurors were sworn to try the issue, and the residue being challenged and set aside for cause shown, the marshal was ordered, forthwith to summon thirty-six others to appear on the fifteenth day of said month of December. The seven jurors were left at liberty to go where they pleased, from the 12th day of said month of December till the 15th, the court charging them to hold no conversation with any person. Exceptions were taken to the refusal of the court to grant the continuance, and the action of the court in permitting the seven jurors to go at large as aforesaid. On the said 15th day of December, five other persons were sworn on the jury.

The first witness examined was the wife of the deceased: she stated, that about ten o'clock at night, of the 26th of August, 1842, she retired to rest, but did not sleep; that about half an hour after, she heard foot-steps about the front door, and some person turning the lock; her husband got up, took his gun, and went to the door, and she went to the servants' room to call them to his assistance, and was met by two men, when she opened the door to let them out; one of them presented a pistol to her, and said if she spoke he would blow her through; saying they only wanted money, and asked how much they had, & c.; that when she saw her husband he was much cut and beaten, and had a stab in his left side; he asked her to lay him down on the bed; said he was dying. Here the counsel for the State desired the witness to relate what her husband said. To this the counsel for the prisoner objected, and insisted that, whether the declarations of the deceased should be given in evidence or not, was a question of law to be determined by the court; and that in order to enable it to decide whether they were admissible, evidence should be given to the court whether the deceased regarded himself in articulo mortis, and past all hope of recovery, when he made the statements now sought to be given in evidence. The court overruled the objection,...