State v. Austin

• Decision Date: 02 July 1904
• Parties: STATE v. AUSTIN.
• Court: Missouri Supreme Court

82 S.W. 5

183 Mo. 478

STATE v. AUSTIN.

Supreme Court of Missouri, Division No. 2.

July 2, 1904.

JURY—SELECTING NAMES—CRIMINAL LAW—EVIDENCE —DECLARATIONS OF CODEFENDANT.

1. Rev. St. 1899, § 3769, requires the court of each county to select the names of persons for jurors, which names shall be written on slips; and by section 3770 the clerk is required to draw them from a box until the required number of jurors is obtained. Held, that a motion to quash the panel was good, where the names were selected by the prosecuting attorney.

2. Where two persons were jointly indicted for a murder, but a severance was had, declarations of one were inadmissible against the other, in the absence of a showing that they were made in his presence, or of a conspiracy.

Appeal from Circuit Court, Pemiscot County; H. C. Riley, Judge.

Charles Austin was convicted of murder in the first degree, and he appeals. Reversed.

Charles H. Danes, for appellant. The Attorney General and Sam B. Jeffries, for the State.

FOX, J.

This prosecution is based upon an information filed in the circuit court of Pemiscot county, Mo., on the 24th day of November, 1902, and is verified and supported by the affidavit of L. L. Collins, prosecuting attorney of said county. The information charges this defendant, Charles Austin, together with George Spacey, Dug Brewer, Fate Austin, Dave Austin, and Arthur Austin, with the murder in the first degree of one Mrs. Carrie Johnston, who lived with her husband and child on a small tract of land adjoining the land occupied by the Austins. A severance was granted this defendant, and he was placed on trial at the June adjourned term, 1903, of said court. Upon arraignment, defendant entered a plea of "not guilty." A motion to quash the regular panel of petit jurors, on the ground that the jury was illegally selected by the prosecuting attorney and not by the county court, as required by law, was interposed by the defendant, but was overruled by the court. The facts set out in the motion were supported by the testimony of Ben M. Tinsley, the county clerk, at the term at which the jury was selected, The court ordered the trial proceeded with, which trial resulted in a conviction of the defendant of murder of the first degree, from which the present appeal is prosecuted.

Upon the trial, the proof substantially tends to prove that: The deceased, Carrie Johnston, lived with her husband and eight or nine year old daughter about one-half mile south from Kennedy's Switch, in Pemiscot county. The house in which they lived was situated upon a tract of land the Austin brothers had leased, and Johnston and wife were living there by the sufferance of the parties who leased to Austin. Johnston was working for the Caruthersville Heading Company. He left home on the 21st of November, 1902, about 7 o'clock. The shooting occurred between 8 and 9 o'clock of the same morning. On the day before the shooting, some of the persons charged with the commission of the crime went to the premises occupied by Johnston and his wife for the purpose of removing a fence, over which the Austins claimed control. They were, however, prevented in this by the deceased; she driving them away at the point of a gun. The following morning each of the defendants armed themselves with rifles and revolvers and proceeded to the scene of the homicide. They commenced removing the fence, which was some distance from the house, when the deceased's daughter called her attention to the fact that the defendants were on the premises. The deceased secured her husband's rifle, which was loaded, and started in the direction of the defendants. There is little evidence as to what occurred, except that soon after the deceased left her house the firing commenced and was continued at short intervals until all guns and revolvers had been emptied. The deceased's daughter testified that the Austin boys and parties who were with them, which included all of the defendants, fired the first shots; that her mother carried the rifle with her, but did not raise it in a firing attitude, and as soon as defendants commenced to fire deceased turned and started towards the house; that while she was thus retreating she was shot in the back, the bullet passing through the body and out at the front of the right arm. When found, the rifle which she carried from the house was lying underneath her. The deceased's husband testified to hearing the shooting, and that several volleys had been fired before he recognized the sound of his own gun. This statement is, however, denied by the witness Glover, who stated that as soon as the shooting commenced the prosecuting witness, Johnston, remarked that those shots were from his gun. The defendant was placed upon the witness stand, and the only question of importance asked him was, "Who shot first?" His reply to this was that the deceased shot first, and that she fired two times. There were a number of shots fired, some of the witnesses estimating the number at 15 or 20, some 40 or 50. Immediately after the shooting defendant left the scene of the homicide and went to Stewart's Landing on the river, where he was arrested, while attempting to go aboard a steamboat.

The Attorney General, with commendable frankness, concedes that the statement by appellant as to the testimony of the county clerk in support of the motion to quash the panel of jurors was substantially correct. It is as follows: "My name is Ben M. Tinsley, and was the clerk of the county court of Pemiscot county, Missouri, at the time this jury was selected, which was selected as follows: The prosecuting attorney, Mr. Collins, selected so many names for each township. He (Collins) wrote them down on a piece of paper and cut it into strips, one name on each strip, and put them in a hat. Judge McDonald sat on the other side of the table and held the hat, and I reached in and drew one name at a time, until I got the number of jurors from that particular township they were drawing from. That is the way the panel was selected. I cannot say that the court approved the names selected by the prosecuting attorney, but only that the court made no objections to the names presented." On cross-examination, Mr. Tinsley stated that the county judges, when they got ready to select the jury, called on Collins, but did not remember what was said. He further stated that the judges saw the names after they were put down on a paper by the prosecuting attorney, and saw the names as they were drawn from the hat. He would not state that they approved them, but made no objections to the names as presented by the prosecuting attorney. Neither the prosecuting attorney nor the county judges made any statement upon the hearing of the motion in respect to the selection of the panel of jurors. This is a sufficient recital from the disclosures of the record to determine the legal propositions involved.

Opinion.

Numerous errors are assigned in the disposition of this case by the trial court. However, from a careful examination of the record, we find that the most serious proposition confronting us is in respect to the manner of selecting the jury, and the action of the court in overruling appellant's motion to quash the panel of jurors, which had been certified to the clerk of the circuit court by the clerk of the county court as being the panel of petit jurors selected by the county court for the June term, 1903, of the circuit court of Pemiscot county, at which term the cause was tried. Our conclusion that this is the important question in the cause is emphasized by the frank admission of the Attorney General, in his able presentation of the question, wherein he says: "In our opinion, this is the most serious proposition in the case, and if the action of the prosecuting attorney in selecting the names from which the jurors were to be selected by the county court is prejudicial to the interests of the defendant, or if it be reasonably apparent that the conduct of the prosecuting attorney is prejudicial or harmful to the interests of the defendant, the court should have sustained the motion to quash the panel, and it should, therefore, have been discharged." The panel of jurors purporting to be selected by the county court was in attendance upon court at the time this cause was set for trial. Before proceeding to trial, the defendant filed his motion to quash the panel of jurors, for the reason that they were selected by L. L. Collins, prosecuting attorney of said county, and not selected and drawn in the manner provided by statute. There was only one witness who testified upon the allegations in the motion. That was Mr. Tinsley, county clerk, who was present at the time of the selection of the jury. His testimony shows beyond question that the names of all the persons, with the exception of a few instances, from the various townships, placed in the hat from which the panel was to be drawn, were submitted and their names placed on slips to be drawn out by the clerk, by L. L. Collins, prosecuting attorney of said county, and the representative of the state in this cause. There are no counter affidavits, or any testimony of any kind explanatory of the manner of selecting the panel, as stated by the clerk of the county court. No testimony indicates that the prosecuting officer was simply making suggestions as to the names of suitable persons from which the panel was to be selected. No conversation is related as occurring between the judges of the county court and Mr. Collins, at the time the jurors were selected. Hence we are left to determine alone, from the testimony of the county clerk, as to the manner of selecting the panel of jurors, and whether or not the challenge to the panel should be sustained on the ground that the method of selection was in violation of the statute. Sections 3769 and 3770, Rev. St. 1899, designate the method of selecting jurors. They provide:

"Sec. 3769. The county court of each county, at...