State v. Barnes

Decision Date28 February 1875
Citation59 Mo. 154
PartiesSTATE OF MISSOURI, Respondent, v. WILLIAM BARNES, Appellant.
CourtMissouri Supreme Court

Appeal from Clinton Circuit Court.

Porter & Merryman, for Appellant.

Corn & Hughes, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

Upon the trial in this case irregularities were committed which must necessarily lead to a reversal.

The indictment was for murder in the second degree and the accused was arraigned and put upon trial for murder in the first degree. After several witnesses were examined, the court then stated that the trial must proceed for murder in the second degree, and there was no re-arraignment or plea of not guilty for that offense.

A party cannot be tried for a crime for which he is not indicted; nor can a trial proceed against him for an offense for which he has not been arraigned and pleaded not guilty.

Again the record does not show that the defendant was present in court when the jury returned and delivered their verdict, nor when the court pronounced its sentence upon him. And it appears that he was absent a part of the time when the witnesses were being examined. The statute declares that no person indicted for felony can be tried unless he is personally present during the trial (Wagn. Stat., 1103, § 15); and we have always held that it was necessary for the record to show that the prisoner was in court during the trial and at the rendition of the verdict. (State vs. Mathews, 20 Mo., 55; State vs. Buckner, 25 Mo., 167; State vs. Cross, 27 Mo., 332; State vs. Braumschweig, 36 Mo., 397; State vs. Ott, 49 Mo., 326.)

The judgment must be reversed and the cause remanded, and as it appears that the defendant is now in the penitentiary by virtue of the sentence of the court, an order will be made that he be taken therefrom and remitted to the custody of the jailor of Clinton county, all the judges concurring.

To continue reading

Request your trial
23 cases
  • Browning v. State
    • United States
    • Nebraska Supreme Court
    • March 17, 1898
    ...43 La. Ann. 157, 8 So. 624; Wilson v. State, 42 Miss. 639; State v. Hubbell, 55 Mo.App. 262; State v. Saunders, 53 Mo. 234; State v. Barnes, 59 Mo. 154; State Montgomery, 63 Mo. 296; State v. Agee, 68 Mo. 264; State v. Vanhook, 88 Mo. 105; Early v. State, 1 Tex. Ct. App. 248; McFarland v. S......
  • Browning v. State
    • United States
    • Nebraska Supreme Court
    • March 17, 1898
    ...43 La. Ann. 156, 8 South. 624;Wilson v. State, 42 Miss. 639;State v. Hubbell, 55 Mo. App. 262;State v. Saunders, 53 Mo. 234;State v. Barnes, 59 Mo. 154;State v. Montgomery, 63 Mo. 296;State v. Agee, 68 Mo. 264;State v. Vanhook, 88 Mo. 105;Early v. State, 1 Tex. App. 248;McFarland v. State, ......
  • State v. Watkins
    • United States
    • Idaho Supreme Court
    • January 31, 1900
    ... ... Am. St. Rep. 855, 55 N.W. 566, 21 L. R. A. 402; Stubbs v ... State, 49 Miss. 716, 722; Wharton's Criminal Law, ... sec. 2999; Younger v. State, 2 W.Va. 579, 98 Am ... Dec. 791, 792, 798; State v. Connors, 20 W.Va. 6; ... Warren v. State, 68 Am. Dec. 227, note; State v ... Barnes, 59 Mo. 154, and cases cited; Lewis v. United ... States, 146 U.S. 370, 13 S.Ct. 136.) Presumptions are ... not to be indulged. (Dunn v. Commonwealth, 6 Pa ... 387, 388, 389; Eliza v. State, 39 Ala. 693; ... Dougherty v. Commonwealth, 69 Pa. 286, 294; ... Stubbs v. State, 49 Miss. 716; Dyson ... ...
  • State v. Grate
    • United States
    • Missouri Supreme Court
    • October 31, 1878
    ...v. Cross, 27 Mo. 332; The State v. Schoenwald, 31 Mo. 147; The State v. Braunschweig, 36 Mo. 397; The State v. Ott, 49 Mo. 326; The State v. Barnes, 59 Mo. 154; The State v. Jones, 61 Mo. 232; The State v. Barnett, 63 Mo. 300; The State v. Cheek 63 Mo. 364; The State v. Allen, 64 Mo. 67; Th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT