State v. Barrington

CourtUnited States State Supreme Court of Missouri
Writing for the CourtFox
Citation95 S.W. 235,198 Mo. 23
PartiesSTATE v. BARRINGTON.
Decision Date01 June 1906
95 S.W. 235
198 Mo. 23
STATE
v.
BARRINGTON.
Supreme Court of Missouri.
June 1, 1906.

1. INDICTMENT—WITNESSES—INDORSEMENT— QUASHING INDICTMENT—GROUNDS.

Rev. St. 1899, § 2517, requires the names of all material witnesses to be indorsed on the indictment, but also declares that other witnesses may be subpoenaed or sworn by the state. Held, that while an indictment on which no witnesses were indorsed was subject to a motion to quash unless the prosecuting attorney offered to supply the omission, if some witnesses were indorsed thereon in the absence of a showing that the state purposely refrained from indorsing the names of other material witnesses, its failure to indorse the names of such witnesses, or to disclose their names was no ground for quashing the indictment.

2. CRIMINAL LAW—OBJECTIONS TO EVIDENCE —MOTION FOR NEW TRIAL—OBJECTIONS—REVIEW.

If the objections at the trial of a criminal case to the introduction of evidence were sufficiently specific to notify the trial court of the nature and character of the objections and the reasons therefor, a general assignment in the motion for a new trial that the court improperly admitted illegal, incompetent, and irrelevant testimony, was sufficient to preserve the point that the evidence objected to was improper cross-examination, for review on appeal.

3. SAME—TRIAL—OBJECTIONS TO EVIDENCE— SUFFICIENCY.

An objection to questions asked of accused while a witness in his own behalf that they were irrelevant, immaterial, and not proper cross-examination was sufficiently specific to preserve the latter proposition for review on appeal.

4. SAME—APPEAL—EVIDENCE—CROSS-EXAMINATION OF ACCUSED—HARMLESS ERROR.

In a prosecution for homicide, accused was required to answer, on cross-examination, questions as to where his home was when he last left England, where he was born, and whether he had been married in Brooklyn, N. Y., under an assumed name. He answered that he was born in India; that he had previously lived part of the year in Brighton and part in London; that he had been in the United States 12 times altogether, had landed in Halifax, Nova Scotia, and the last time came to the United States in January, 1903; that he had never been married under an assumed name, or but once, in St. Louis, etc. Held that, though such questions were immaterial, the questions and answers were nonprejudicial.

5. SAME—NONRESPONSIVE ANSWERS.

Where accused was asked on cross-examination as to the nature of his business prior to his arrest, and answered that he had been sent to the workhouse for a misdemeanor, but had been exonerated, after which he made an arrangement with deceased to go to a certain hotel, from which he came to prison, such answer was nonresponsive and voluntary, of which he could not complain on appeal.

6. WITNESSES—CREDIBILITY—PRIOR CONVICTION—CROSS-EXAMINATION OF ACCUSED.

Rev. St. 1899, § 4680, provides that any person who has been convicted of a criminal offense is a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, and that he must answer the questions if relevant to that inquiry. Held that, where accused offered himself as a witness in his own behalf, he might be properly required under such section to testify that he had been convicted of a misdemeanor and sentenced to the workhouse.

7. CRIMINAL LAW—CHANGE OF VENUE—RIGHT TO CHANGE.

The right of an accused to have his case removed from the county and circuit in which it was pending is purely statutory.

8. SAME—DENIAL—EVIDENCE—DISCRETION.

In a prosecution for homicide, evidence of prejudice on the part of the inhabitants of the county in which accused was tried held insufficient to establish that the denial of an application for a change of venue on that ground was an abuse of the trial court's discretion.

9. JURY—CHALLENGE TO ARRAY—ORDER FOR VENIRE—PRESENCE OF DEFENDANT.

An order authorizing the sheriff to summon a jury to be present at a subsequent date fixed for the trial of accused was a mere administrative function of the court, and was not a part of the trial of the cause at which the presence of accused was required by Rev. St. § 2610, declaring that no person indicted for

[95 S.W. 236]

felony can be tried unless he be personally present during the trial.

10. CRIMINAL LAW—APPEAL—REVIEW—PRESUMPTIONS —TRIAL—PRESENCE OF ACCUSED.

Where accused was present at the arraignment, and pleaded not guilty prior to the order for a special venire to try him, it would be presumed, in the absence of evidence to the contrary, that he was present during the whole of the trial, as expressly provided by Rev. St. 1899, § 2610.

11. SAME—TRIAL—PROSECUTING ATTORNEY— MISCONDUCT—ARGUMENT—CORRECTION BY COURT.

The prosecuting attorney in his opening argument stated that his conception of the devil has been materially changed; that, if he were then to portray him, he would not paint him as hoofed and horned, lurid with purgatorial fires, but rather as arrayed in white vest and Prince Albert coat, with a voice as soft as the breath of summer, and with a steel-gray eye, at the time pointing to defendant, who was thus attired. In another point in his argument, he referred to defendant's conduct as showing "reptilian sagacity." Counsel was promptly reprimanded by the court on each occasion in the presence of the jury and directed to confine himself to a discussion of the facts. Held, that such argument, though erroneous, did not constitute such abuse of defendant as constituted reversible error.

12. SAME—NEW TRIAL—MISCONDUCT OF JURY —KNOWLEDGE—TIME—PROOF.

An application for a new trial for misconduct of one of the jurors was insufficient, where there was no proof that both accused and his counsel were ignorant of the misconduct until after the trial.

13. SAME—PLEA IN ABATEMENT—INDICTMENT —INDORSEMENT OF NAMES.

Since Rev. St. 1899, § 2517, requiring the names of witnesses to be indorsed on the indictment, does not impose such duty on the prosecuting attorney, it will be presumed that the material witnesses were so indorsed at the direction of the grand jury; and hence a plea in abatement, alleging that material witnesses were intentionally omitted from the indictment by the prosecuting attorney in order to surprise accused, presents no issue of fact to be submitted to a jury.

14. SAME.

Where the names of a large number of witnesses were indorsed on an indictment for murder, a plea in abatement that the prosecuting attorney intentionally refrained from indorsing the names of certain witnesses on the indictment was properly overruled.

15. INDICTMENT—COUNTS—DISMISSAL—INSTRUCTIONS —PERPETRATION OF ROBBERY— CONVICTION OF OFFENSE INCLUDED IN CHARGE.

Where accused was indicted for homicide alleged to have been committed by shooting, by drowning, by shooting and drowning, by unknown means, and in the perpetration of a robbery, the entry of a nolle on the count charging murder in the perpetration of a robbery did not prevent the court from properly charging that the jury were authorized to convict, if defendant killed deceased in the perpetration of a robbery.

16. CRIMINAL LAW—EVIDENCE—RELEVANCY.

In a prosecution for homicide, evidence concerning the business that deceased and his wife were engaged in, and that it made them many enemies, who had threatened deceased with personal violence, was irrelevant.

17. SAME—BEST AND SECONDARY EVIDENCE.

Where accused, after the alleged killing of deceased, went to witness and procured him to write a letter to deceased's wife purporting to come from deceased in order to allay her fears for deceased's safety, and the original letter was lost after it came into the hands of the police, a copy thereof, identified by the witness as being an exact copy of the letter written by him, was admissible.

18. SAME—APPEAL—REVIEW—RIGHT TO OBJECT.

Where, after the introduction of a copy of a letter alleged to have been written by witness at defendant's suggestion to deceased's wife after the homicide, defendant referred to it as "this letter," and testified that he consented to the writing thereof because he could not bear to see deceased's wife fretting concerning the nonreturn of her husband, he thereby identified the copy himself and was estopped to object to its introduction.

19. SAME—CONDUCT OF BYSTANDERS AT TRIAL.

In a prosecution for homicide, accused cannot complain of the weeping of deceased's widow while she was in court during the argument of the cause.

20. INDICTMENT—MOTION TO QUASH—PLEA IN ABATEMENT—EVIDENCE.

On a motion to quash an indictment and on a plea of abatement because of the prosecuting attorney's alleged intentional omission to indorse the names of witnesses for the state on the indictment, it was not error for the court to exclude the subpoenas of witnesses before the grand jury.

21. HOMICIDE—INSTRUCTION—DEFINITION OF TERMS.

In a prosecution for homicide, an instruction defining "provocation" as any such provocation by improper conduct of deceased toward defendant as to cause defendant to be so far under the dominion of sudden passion in consequence thereof as to be unable to judge rightly as to the nature and quality and consequence of his acts, or to materially impede or interfere with such judgment, and take away deliberation and prevent a cool state of the blood, was a sufficient definition of such term.

22. SAME—DELIBERATION.

An instruction defining "deliberation in a prosecution for homicide" to mean done in a cool state of blood; not in sudden passion, engendered by some just or reasonable cause or provocation; not brooded over or reflected upon, but an act done in furtherance of a formed design, etc.—was sufficient.

23. SAME—IMPROPER CONDUCT.

In a prosecution for homicide, the omission of the court to define the term "improper

[95 S.W. 237]

conduct," as used in an instruction on provocation, was not error; such term being without a technical meaning.

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76 practice notes
  • State v. Finkelstein, No. 19717.
    • United States
    • United States State Supreme Court of Missouri
    • January 29, 1917
    ...doing the same thing. When the matter was first presented to me here, in dissenting opinion in State v. Barrington, 198 Mo. loc. cit. 126, 95 S. W. 235, I hesitated to concur with Valliant, J., in his assault upon such an instruction. The hesitancy was not for lack of force in his reasoning......
  • State v. McGee, No. 33947.
    • United States
    • United States State Supreme Court of Missouri
    • April 25, 1935
    ...trial where such misconduct is first presented in the motion for new trial, as is the situation in the instant case. State v. Barrington, 198 Mo. 23, 93, 95 S.W. 235, 257(6), states: "Upon this assignment of error (misconduct of one of the jurors) it will suffice to say that the record fail......
  • State v. Baldwin, No. 26206.
    • United States
    • United States State Supreme Court of Missouri
    • June 27, 1927
    ...banc, and thus what is said in Noland's Case has been said by the court in banc. State v. Barrington (in banc) 198 Mo. loc. cit. 76, 77, 95 S. W. 235; Collier v. Lead Co. (in banc) 208 Mo. loc. cit. 257, 106 S. W. 971; Wampler v. Railroad (in banc) 269 Mo. 464, 190 S. W. In this latter case......
  • State v. Gibilterra, No. 35433.
    • United States
    • United States State Supreme Court of Missouri
    • May 3, 1938
    ...1119; State v. Brennan, 164 Mo. 487, 510, 65 S.W. 325, 330 (6); State v. Stebbins, 188 Mo. 387, 397, 87 S.W. 460, 463; State v. Barrington, 198 Mo. 23, 109, 95 S.W. 235, 263 (15); State v. Armstrong, 203 Mo. 554, 559, 102 S.W. 503, 504; State v. Brooks, 220 Mo. 74, 83-4, 119 S.W. 353, 356; ......
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56 cases
  • State v. Finkelstein, No. 19717.
    • United States
    • United States State Supreme Court of Missouri
    • January 29, 1917
    ...doing the same thing. When the matter was first presented to me here, in dissenting opinion in State v. Barrington, 198 Mo. loc. cit. 126, 95 S. W. 235, I hesitated to concur with Valliant, J., in his assault upon such an instruction. The hesitancy was not for lack of force in his reasoning......
  • State v. McGee, No. 33947.
    • United States
    • United States State Supreme Court of Missouri
    • April 25, 1935
    ...trial where such misconduct is first presented in the motion for new trial, as is the situation in the instant case. State v. Barrington, 198 Mo. 23, 93, 95 S.W. 235, 257(6), states: "Upon this assignment of error (misconduct of one of the jurors) it will suffice to say that the record......
  • State v. Underwood, No. 18658.
    • United States
    • United States State Supreme Court of Missouri
    • February 23, 1915
    ...of proof of motive is in an approved form. State v. Duestrow, 137 Mo. 44, loc. cit. 74, 38 S. W. 554, 39 S. W. 266; State v. Barrington, 198 Mo. 23, 95 S. W. 235; State v. David, 131 Mo. 380, loc. cit. 396, 33 S. W. 28. Instruction No. 8: This is an approved instruction on presumption of in......
  • State v. Schooley, No. 29099.
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1929
    ...a surprise and prejudice to the defendant. Sec. 3889, R.S. 1919; State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. Barrington, 198 Mo. 23; State v. Steifel, 106 Mo. 129; State v. Nettles, 153 Mo. 469; State v. Brown, 145 S.W. 118; State v. Kehoe, 220 S.W. 961; State v. Pierson,......
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