State v. Barton

• Decision Date: 31 October 1879
• Citation: 71 Mo. 288
• Parties: THE STATE v. BARTON, Appellant.
• Court: Missouri Supreme Court

71 Mo. 288

THE STATE

v.BARTON, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

T. G. Johns and C. W. Wilson for appellant.

J. L. Smith, Attorney-General, for the State in argument cited as to the competency of the jurors, State v. Baldwin, 12 Mo. 223; State v. Davis, 29 Mo. 391; State v. Rose, 32 Mo. 346; State v. Lawrence, 38 Iowa 51; State v. Bryan, 40 Iowa 379; State v. Williams, 3 Stew. (Ala.) 454, 465; Rice v. State, 7 Ind. 332, State v. Sater, 8 Iowa 420; Sanchez v. People, 4 Park. Crim. R. 535, 553; People v Brown, 48 Cal. 253; O'Connor v. State, 9 Fla. 215.

NAPTON, J.

The defendant in this case was convicted of murder in the first degree. The evidence and instructions are not preserved in the record, and the only points presented for our consideration are two:

1. COMPETENCY OF JUROR WHO HAS FORMED AN OPINION.

First. The admission by the court on the panel of jurors of two persons, who, on their voir dire, admitted that they had formed an opinion from rumor, but stated that they could give a fair and impartial verdict in the case, regardless of such opinion; that they had no prejudice or bias against the prisoner, and would be governed by the testimony. One of the jurors further said that it would take evidence to remove the opinion thus formed. The court overruled the objections, and the defendant's counsel excepted. This point has been considered and decided at the present term in the case of the State v. Core, 70 Mo. 491, and the previous cases referred to and reviewed. I may add that, in the State v. Davis, 29 Mo. 392, the precise words used by one of the jurors in this case, “that it would require evidence to remove the opinions they had entertained,” were also used by the jurors in that case, who were pronounced by this court competent. We regard these decisions as settling the law in this State.

2. CRIMINAL LAW: punishment of youth under sixteen.

The second ground upon which we are asked to reverse the judgment is the refusal of the court, after conviction, to sentence the defendant to imprisonment in the county jail, it having been found by the court that he was, at the time of committing the murder, under sixteen years old. The statute on which this motion is founded is as follows: “Whenever any person under the age of sixteen years shall be convicted of any felony, he shall be sentenced to imprisonment in a county jail, not exceeding one year, instead of imprisonment in the penitentiary, as prescribed by the preceding provisions of this law.” This section seems capable of but one construction, and that is to require imprisonment in a county jail as a substitute for imprisonment in the penitentiary, where such offenses as were punishable by imprisonment in the penitentiary have been committed by a youth under sixteen. A felony punishable by death is not within the letter or meaning of the statute. The judgment must be affirmed. A majority of the court concur. HENRY and HOUGH, JJ., dissent.

HENRY, J., DISSENTING.

The bill of exceptions shows that on his examination on the voir dire touching his competency as a juror, George H. Snyder, one of the panel of forty, answered: “I have heard the case talked about a good deal. I have read the publications in the St. Charles papers with reference to the case, and from what I have heard about the matter, I have formed and still retain an opinion as to the guilt or innocence of the defendant I have not talked with any of the witnesses or any one who pretended to know the facts in the case. I formed my opinion from what I read in the newspapers and conversations I've had with others about the case. I can hear the evidence and render a fair and impartial verdict in the case regardless of such opinion. I have at this time no bias or prejudice against the prisoner, from what I have read or heard, which would prevent my giving him a fair and impartial trial after having heard the evidence.” He further said that “It would take evidence to remove the opinion thus formed.” A challenge of this juror for cause was disallowed by the court.

To sustain the action of the court in disallowing the challenge, Baldwin v. State, 12 Mo. 225; State v. Davis, 29 Mo. 397, and State v. Rose, 32 Mo. 355, are relied upon. When this question was under consideration before, in the State v. Core, 70 Mo. 491, the court supposed the question to have been settled by the State v. Rose, but on a critical examination of that case, I am satisfied that so far from determining the question now before us in favor of the State it is an authority to the contrary. Baldwin v. State entirely fails to sustain the competency of the jurors in this case. There the juror said: “That he saw statements in the New Orleans public papers in regard to the transaction; that from these he formed an opinion and believed that, if the statements were true, he has an opinion as to defendant's guilt or innocence, but he had no prejudice or bias against defendant; that his opinion is now unchanged, if the facts are as stated; that he would be governed solely by the evidence; that he had not conversed with witnesses.” He was held to be a competent juror, and the court also said that it was not the province of the juror to pass upon his competency, but for the court to determine upon the facts whether he was biased or prejudiced or not. But the answer of the juror there and of the juror here is totally different. In that case, the opinion formed was entirely hypothetical. It did not indicate a belief that the facts were as heard. It does not show any impression upon the mind which it would require evidence to remove. But here, the statement of the juror shows that, although his opinion was formed upon rumors alone, the impression of the guilt or innocence of the accused was such as would remain until removed by evidence.

In the State v. Davis, all that appears in the opinion of the court on the subject is as follows: “The objection to the competency of the jurors cannot be sustained. The jurors were examined on their voir dire, and stated that they had formed an opinion, but it was upon rumor, and was not such as would bias or prejudice their minds. This has long been the law of this State, and such jurors have invariably been held competent.” We have taken the trouble, however, to examine the record in that case, and it does not appear that the juror said it would require evidence to change the opinion he had formed; and, although this was urged by the counsel as rendering the juror incompetent, singularly enough, it was not noticed by the court in its opinion. But, conceding that it is an authority in support of the views entertained by a majority of this court, it is a solitary case in this State and opposed to the great weight of authority in the United States, as we shall endeavor to show; and, although cited in argument in the State v. Rose, was disregarded. In the State v. Rose, the court said: “The case of the juror Turner comes fully within the exceptions in that section,” (section 14 of the revision of 1855, page 1191, the same as section 1,897, Revised Statutes 1879,) “and he was a competent juror, and the court committed no error in refusing to strike his name from the list. When E. B. Davis, another of the panel of thirty-six was examined, he stated that he had formed and expressed an opinion, that his opinion was formed on rumor, but he did not think it would be in his way of giving the accused a fair and impartial trial according to the law and evidence, regardless of the opinion he had formed; that he had the same opinion still, and that it would take evidence to remove it. The defendant moved the court to strike his name from the panel, which the court overruled. The name of the juror does not appear on the list of the panel of those who tried the case, nor does it appear that he was challenged, either for cause or peremptorily, nor anything from which it can be inferred that the defendant suffered any injury by his being retained on the list of thirty-six. His case does not come within the exception of the clause of the statute above quoted. It does not appear affirmatively that his opinion was not such as to prejudice or bias his mind, and in that does not fulfill the requirement of the statute; but, as he was not on the jury which tried the case, and the defendant was not otherwise injured by the action of the court in reference to him, there is in it no reason to reverse the judgment.”

The juror's answer, but for that portion of it in which he stated that it would take evidence to remove his opinion, did not render him incompetent, and it was evidently with reference to the statement that it would take evidence to remove his opinion, that the court remarked: “His case does not come within the exception of the clause of the statute above quoted. It does not appear affirmatively that his opinion was not such as to prejudice or bias his mind, and in that does not fulfill the requirements of the statute; but, as he was not on the jury which tried the case, and the defendant was not otherwise injured by the action of the court in reference to him, there is in it no reason to reverse the judgment.” In other words, he was an incompetent juror, but he was not challenged for cause or peremptorily, and was not of the twelve who composed the jury which tried the case, and therefore defendant was not prejudiced.

Section 1,897 of the Revised Statutes of 1879, which has been substantially the same in all the revisions of the statutes since 1835, provides that: “It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue or any material fact to be tried; but, if it appear that such opinion has been founded only on umor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” The law allows the accused a given number of peremptory challenges--challenges for whim or...