State v. Allen

• Decision Date: 31 October 1876
• Parties: STATE OF MISSOURI, Respondent, v. JOHN W. ALLEN, Appellant.
• Court: Missouri Supreme Court

64 Mo. 67

STATE OF MISSOURI, Respondent,

v.JOHN W. ALLEN, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Greene Circuit Court.John G. Wear, C. W. Thrasher, with H. C. Young, for Appellant, cited: State vs. Ware, 61 Mo. 232; State vs. Buckner, 25 Mo. 167; State vs. Cross, 27 Mo. 332; State vs. Schoenwald, 31 Mo. 147; State vs. Browning, 36 Mo. 397; State vs. Mathews, 20 Mo. 55; State vs. Barnes, 59 Mo. 154; State vs. Ott, 49 Mo. 326.

J. L. Smith, Att'y Gen'l, for Respondent, cited: State vs. Underwood, 57 Mo. 40; State vs. Brown, 63 Mo. 439.

NORTON, Judge, delivered the opinion of the court.

Defendant was indicted in the circuit court of Lawrence county, for murder in the first degree for killing one George Riddle, in August, 1875. On the application of defendant, a change of venue was awarded to the circuit court of Greene County, in which court defendant was tried at the November term, 1876, thereof, and convicted of murder in the second degree.

Numerous exceptions were taken to the admission and rejection of evidence, the giving and refusing instructions, which are relied upon here as causes for the reversal of a judgment. It is also insisted that the record in this case fails to show affirmatively the presence of the prisoner during the progress of the trial.

If this last objection is well founded, it necessitates a reversal of the judgment, under repeated decisions of this court, no matter how well and properly it may have been tried in all other respects. The necessity for the record showing affirmatively the presence of the prisoner, whose liberty and life are in peril, during the trial of the question whether he shall be deprived of either, has been so often and so clearly and plainly expressed by this court in numerous cases, covering a period of more than twenty years, that it constitutes criminal neglect on the part of those charged with the duty of making up these records, and those charged with the duty of seeing that they are properly made up, when the record fails to show this fact so necessary to sustain any judgment which may be rendered in such case.

The record proper in this case shows that on the 27th day of November, 1876, a jury was impaneled and sworn, and that defendant was then in court, and that on the swearing of the jury, for want of time to try on that day, the cause was continued till the next morning--the defendant being committed to the custody of the sheriff. The record proper does not show what disposition was made either of the prisoner or jury after this adjournment. It does not show that either the prisoner or jury were in court the next day after the jury were sworn, or at any other time, or that there was a trial of the case, or that any evidence was given before the jury on the next day after they were sworn, or any other day.

The only statement that is made upon the subject is made in the bill of exceptions. The bill of exceptions, after reciting all the evidence and fifteen pages of closely written instructions given and refused, and numbering forty-three, contains the following statement:

“Under the instructions given by the court, the jury found the defendant guilty of murder in the second degree.

‘We the jury find the defendant, John W. Allen, guilty of murder in the second degree as charged in the indictment and assess his punishment at imprisonment in the State penitentiary for term of twenty years.'

J. W. HATFIELD, Foreman.

And on the same day in which the said jury returned their said verdict to-wit: on Saturday, the 2d day of December, 1876, the court rendered judgment in this cause.”

The following is a literal copy of the judgment thus recited, so far as it is copied:

“And now at this day comes...