State v. Asbury

• Decision Date: 25 March 1931
• Docket Number: 30614
• Citation: 36 S.W.2d 919,327 Mo. 180
• Parties: The State v. Thomas Asbury, Appellant
• Court: Missouri Supreme Court

36 S.W.2d 919

327 Mo. 180

The State v. Thomas Asbury, Appellant

No. 30614

Supreme Court of Missouri

March 25, 1931

Appeal from Callaway Circuit Court; Hon. H. A. Collier Judge.

Reversed and remanded.

N. T Cave, W. H. Sapp and Ruby M. Hulen for appellant.

(1) Sec. 4027, R. S. 1919, requiring that the jury in a capital case, after argument and submission of the case, shall be kept together, is mandatory. Separation and violation of this statute requires the granting of a new trial. State v Hayes, 19 S.W.2d 883. (2) Sec. 4026, R. S. 1919, requires that in capital cases, during the progress of the trial, the jury shall not be permitted to separate. In case of violation of the statute the burden rests upon the State to affirmatively show that no prejudice resulted to defendant. State v. Hayes, supra.

Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for respondent.

(1) No error was committed in permitting the jury to separate during the trial of the cause. (a) The mere fact of the separation of the jury will not invalidate a verdict when it does not appear that a jury was subjected to improper influence. State v. Orrick, 106 Mo. 124; State v. Spaugh, 200 Mo. 608; State v. Prince, 258 Mo. 328; State v. Rozell, 279 S.W. 711. (b) There is no showing that the separation of the jury was attended with misconduct of a juror that may have influenced his judgment. State v. Washburn, 91 Mo. 571; State v. Baber, 74 Mo. 292; State v. Spaugh, 200 Mo. 571; State v. Collins, 86 Mo. 245. (c) It was affirmatively shown by the State that the jurors were not subjected to improper influences. State v. Schaeffer, 172 Mo. 335; State v. Perno, 23 S.W.2d 89.

OPINION

Henwood, J.

By an indictment filed in the Circuit Court of Boone County, the defendant is charged with murder in the first degree. The venue was changed to the Circuit Court of Callaway County, where a jury found him guilty of manslaughter and assessed his punishment at imprisonment in the penitentiary for ten years. From the judgment and sentence entered in accordance with the verdict, he has, in due course, perfected an appeal to this court.

The defendant does not challenge the sufficiency of the evidence, but does seriously contend that he is entitled to a new trial on the ground that the jurors were not kept together "after the case had been finally submitted to them and after they had begun their deliberations thereon."

We have concluded that the defendant is right in this contention. Therefore, a detailed statement of the evidence adduced at the trial would serve no purpose in this opinion. It will suffice to say that Matt Frost, the victim of the alleged murder, was shot with a pistol and killed by the defendant, as the result of an altercation between them, while they and several other men were engaged in "shooting craps" for money on the side of a public road in Boone County, about midnight, September 15, 1928, under the front lights of an automobile.

Section 3683, Revised Statutes 1929, provides that: "When the argument is concluded, the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer who, in case of a felony, shall be sworn to keep them together in some private room or convenient room or place and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed upon their verdict; and when they have agreed, he shall return them into court, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations." (Our italics.)

Section 3734, Revised Statutes 1929, provides that "the court may grant a new trial for the following causes, or any of them: . . . second, when the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case; . . ."

Referring to these statutes, Judge Macfarlane said: "A failure to observe the requirements of Section 1910 (now Sec. 3683) will be cause for a new trial under Section 1966 (now Sec. 3734). These sections have been construed, by this court, in a number of cases. They are held to be mandatory to the extent, at least, of preventing any opportunity for misconduct on the part of jurors, or suspicion of improper influences upon them. [Cases cited.] If, after the case has been finally submitted, and before verdict, it be shown that opportunity was given for improper influences to be used on any juror, that alone would require a new trial, under the construction put upon Section 1966 by the court, in the cases last cited. The intention of the Legislature in adopting Sections 1910 and 1966, as construed, was to require a new trial whenever there was such a separation of the jury as gave opportunity for outside influences, and to cut off inquiry as to whether such influences were, in fact, brought to bear upon it." [State v. Orrick, 106 Mo. l. c. 126, 17 S.W. l. c. 179.]

We have strictly adhered to this construction of these statutes in all subsequent adjudications. [See State v. Howland, 119 Mo. 419, 24 S.W. 1016; State v. Tarwater, 293 Mo. 273, 239 S.W. 480; State v. Connor, 274 S.W. 28; State v. Hayes, 19 S.W.2d 883.]

In the recent case of State v. Hayes, supra, l. c. 886-887, Davis, C., said: "Following the interpretation of our statutes by the adjudicated cases on the subject, we think it was the intention of the Legislature, where the jurors separate, without permission of the court, unattended by any officer, after the cause has been submitted to them to deliberate upon a verdict, where an opportunity was afforded for outside or sinister influences, to forestall inquiry as to whether any outside or sinister influence was exerted on them, thus requiring the courts to grant defendant a new trial."

The record shows that the trial commenced Wednesday morning, and that, upon the conclusion of the arguments of counsel, "at 9:55 P. M." Thursday night, "the oath to safely keep the jury, etc., was administered to Sheriff J. C. Owen and Deputy Sheriff O. B. Suggett, and the jury retired to consider of their verdict."

In support of his motion for a new trial, the defendant called Mr. O. B. Suggett, deputy sheriff, as a witness, and he testified, in substance, as follows: Immediately after the case was submitted to the jury, Mr. Maddox, another deputy sheriff, took the jury from the court room to the jury room where they deliberated about thirty minutes. Then they were taken back to ...