State v. Brennan

• Citation: 65 S.W. 325,164 Mo. 487
• Parties: STATE v. BRENNAN.
• Decision Date: 12 November 1901
• Court: United States State Supreme Court of Missouri

65 S.W. 325

164 Mo. 487

STATE v. BRENNAN.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

CRIMINAL LAW — TEARING UP RAILROAD — INDICTMENT — JURY — CHALLENGE TO ARRAY — BILL OF EXCEPTIONS — OPINION — ACCOMPLICE — CONFESSION — EVIDENCE — INSTRUCTIONS — APPEAL — RECORD.

1. A challenge to the array of jurors, to avail, must be in writing.

2. A challenge to the array of jurors is not included in Rev. St. 1879, § 3776, as amended by act of March 31, 1885, providing that motions for new trial and in arrest of judgment and instructions need not be copied in the bill of exceptions when the bill directs the clerk to copy the same, and hence such challenge cannot be reviewed unless copied in the bill of exceptions.

3. Where the clerk, without authority, copies into the record matter which has no place there, it does not thereby become a part of the record in a legal sense.

4. Where, in a criminal case, a juror states that he has formed an opinion as to the guilt or innocence of defendant, and it appears that such opinion is founded only on newspaper reports, and that the juror is free to be governed by the evidence and can render an impartial verdict, it is proper to swear him, under Rev. St. 1899, § 2616, providing that, if the juror's opinion is founded on rumor and newspaper reports, and is not such as to prejudice his mind, he may be sworn.

5. Where, on the trial of defendant for tearing up a railroad, the superintendent of the road testified that he was informed that the act was to be done, and was hastening to the spot when it was done, and on cross-examination he was asked to name his informant, the error, if any, in sustaining an objection to the question, is cured by his afterwards giving the name.

6. On the trial of defendant for tearing up a railroad track, a witness, over defendant's objections, was permitted to identify a written statement as made by one who was jointly indicted with defendant, and to testify that such statement was read to defendant, and what he said in relation thereto. The statement was not introduced in evidence or given to the jury. Held, the evidence was proper, and did not conflict with the rule excluding confessions of accomplices.

7. Though the court in a criminal prosecution has determined that defendant's confession is not inadmissible on the ground that it was not voluntary, yet the defendant is entitled to an instruction that the jury may consider the circumstances under which the confession was obtained as determining the credit to be given thereto.

8. The refusal, in a criminal prosecution, of defendant's requested instruction, relative to a confession by him, that before the jury should consider it as evidence they must be satisfied that it was voluntary, is not error where the court has instructed that it is for the jury to consider how much of defendant's statements as proved by the state is worthy of belief.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Morris Brennan was convicted of maliciously tearing up and removing a portion of the track of the St. Louis Transit Company, and appeals. Affirmed.

At the October term, 1900, of the St. Louis circuit court, the defendant was indicted for willfully and maliciously tearing up and removing a portion of the track of the St. Louis Transit Company, a railroad corporation, organized under the laws of this state and owning and operating a track and cars thereon, known as the "Olive Street Line," in said city. The indictment is drawn to state a crime under section 1953, Rev. St. Mo. 1899. It charges every fact essential to the perpetration of the offense denounced by the statute, and is sufficient. State v. Johns, 124 Mo. 379, 27 S. W. 1115. The defendant was duly arraigned, and pleaded not guilty. The cause was docketed for trial on November 20, 1900. On the 13th day of November, 1900, the state made its application for a special jury, which was granted, and such venire ordered summoned to appear November 20, 1900, on which last-mentioned day the defendant in open court and by his counsel challenged the array because illegally and improperly selected. The court overruled the challenge, and thereupon the jury was selected to try the cause. The trial proceeded, and on the 22d day of November, 1900, the jury returned a verdict of guilty, and assessed defendant's punishment at 10 years in the penitentiary. In due time defendant lodged his motions for new trial and in arrest, which were heard and overruled, and sentence pronounced. From that judgment he appeals to this court.

The main facts developed on the trial may be summarized in a short space. Prior to and on the 11th of August, 1900, the St. Louis Transit Company was a street railroad corporation organized under the laws of this state, and as such was operating for the transportation of passengers a cable street railroad along and upon Maryland avenue, between Euclid avenue and Taylor avenue, known as the "Olive Street Line"; that on the 11th of August, 1900, and for some time prior thereto, a strike existed among the employés of said railroad, and a majority of them had quit work. The evidence tended to prove that on the evening of the 11th of August Morris Brennan, the defendant, James Schwartz, and Fred Northway met at the residence of defendant, and secured a large quantity of explosives, commonly called "dynamite," and then and there agreed to go out and blow up and destroy certain portions of the aforesaid transit company's tracks, for the purpose of rendering the same impassable and preventing travel thereon. They secured a minnow bucket and a revolver, and, placing the explosives in the bucket, started out to the western end of the Olive Street Line to blow it up. They proceeded to a point on said railroad on Maryland avenue between Euclid and Taylor avenues, and awaited there until a car had gone west, knowing it must be switched at King's highway, two blocks west, and then return east. It appears that one of the three sat upon the side of the street, holding the revolver, while another lifted the top over a manhole which extended under the tracks, and placed in this hole a charge of explosive with a fuse attached, and lighted it. They then left this point, and went east on Maryland avenue to Taylor avenue, and thence north. When they had reached a place some two blocks distant, the dynamite exploded. Almost immediately after the explosion they were halted by a private watchman, who questioned them as to where they had been, to which they replied they had been to Creve Coeur Lake, fishing. While this colloquy was going on, two citizens — Messrs. Lackland and McCluney — came up, and at Lackland's suggestion they were searched. An empty revolver was found on Northway, and the empty minnow bucket was found to be dry. When asked what the explosion was, defendant answered, "Evidently a gas stove." They were then allowed to go. Returning to the scene of the explosion, the testimony shows that a cable car on the Olive Street Line was coming east from King's highway, and that when 8 or 10 feet from the place where the dynamite had been placed the motorman in charge and on the front end saw smoke arising from the slot; that he knew that it was impossible for him to stop; that he tightened the grip, and attempted to pass over before the explosion occurred. The train consisted of a grip car and a trailer. After the trailer had passed about eight feet from the place where the smoke was seen, the explosion occurred. So violent was it that it blew the window lights out of the train. It blew the motorman, who was then 30 or 40 feet away, out of the car and into the street. It destroyed the track, blew out the concrete conduit and roadway, blew off the pulleys and rollers, and closed the slot through which the grip ran, — all of which constituted portions of the railroad and the works thereof, — and rendered it impossible to pass a train over that track; that another car, coming east, was stopped, and could not proceed. The testimony further shows that a hole was blown in the concrete and pavement of the street from three to four feet square; that at the time of this explosion the conductor, motorman, and a passenger were on this train. It is clearly shown from the testimony that as a result of this explosion it was impossible for the car or train next to come along said track to pass. The officers of the transit company had been warned that an explosion was to occur somewhere on the west end of the Olive street division. In this particular case the superintendent, Mr. Davidson, had been told by Richard Eaton, and at the moment of the explosion he and Eaton were riding in Davidson's buggy west on Sarah street, four blocks east and two blocks north of where the explosion occurred, going as fast as they could along the line of the Olive street division for the purpose of stopping the explosion, if possible, and of capturing the persons engaged therein. Eaton was in the buggy with Davidson, four blocks east and two blocks north of where the explosion occurred, at the moment when the report was heard. Chief Campbell and other officers of the police department arrived at a few minutes after the explosion, they having been also notified. With the information given them by Private Watchman Higgins, who knew one of the defendants, and with the information gathered from the reading of the union card held by one of them, all three of the defendants were located and arrested that night. When Brennan, the appellant, was arrested, his house was searched by Assistant Chief Pickel, Dr. Brokaw, and others, and a large quantity of dynamite was found secreted in a closet, and a large quantity of fuse secreted in the basement. After being taken to the police station and locked up, the defendant, Brennan, made a confession to Chiefs Campbell and Pickel and others of the police force, in the presence of a number of newspaper correspondents, which confession was...