State v. Brooks

• Decision Date: 20 June 1887
• Citation: 5 S.W. 257,92 Mo. 542
• Parties: STATE v. BROOKS.
• Court: Missouri Supreme Court

5 S.W. 257

92 Mo. 542

STATE v. BROOKS.

Supreme Court of Missouri.

June 20, 1887.

1. INDICTMENT — MOTION TO QUASH — ILLEGAL ARREST.

It is no ground for a motion to quash an indictment that, previous to the finding thereof, defendant had been illegally arrested, and was in custody under such arrest when said indictment was found.¹

2. JURY — IMPANELING — MISNOMER.

In response to an application by defendant under section 1, Acts Mo. 1885, p. 74, for a special jury, a list of the persons summoned as jurors, and of those not summoned, was furnished defendant's counsel. When the name of one Picker was called, one Vicker answered, and to the names of Gahl and Richardson jurors respectively named Gaier and Riches responded. Held, that an objection by defendant's counsel to proceed with the trial until a corrected list of the jurors should be furnished was properly overruled.

3. SAME — COMPETENCY — OPINION.

Jurors who state upon their voir dire, on a criminal trial, that they have formed an opinion based on newspaper reports, may properly be asked whether, if sworn as jurors, they can give the accused a fair and impartial trial.

4. SAME.

A proffered juror upon the trial of a criminal case, having stated that he had formed an opinion from what he had read, was asked whether, notwithstanding such opinion, he could give the accused a fair and impartial trial and replied, "That is very doubtful." Held, that no error was committed in sustaining a challenge by the state to the juror.

5. SAME — COMPETENCY — EXAMINATION.

A discretion is vested in the trial judge to curtail the examination of jurors as to opinions which have already been sufficiently developed.

6. SAME — AGE AND RESIDENCE.

Sections 2778, 2779, Rev. St. Mo., justify challenges to proposed jurors in criminal trials in the city of St. Louis if such persons are either under 21 years of age, or over 65, or are not citizens of the state of Missouri or residents of the city of St. Louis.

7. EVIDENCE — CONFESSIONS — ARTIFICE.

A confession made by the accused, while confined in jail awaiting trial, to a detective placed there upon a fictitious charge of crime in order to ingratiate himself with and obtain defendant's confidence, is admissible on the trial of defendant. SHERWOOD, J., dissenting.

8. CRIMINAL PRACTICE — CONDUCT OF TRIAL — ADMISSION OF PUBLIC.

The right of one accused of a criminal offense to a public trial is not violated if, after admitting a reasonable portion of the public to the court-room where the trial is progressing, those who cannot find seats are excluded.

9. SAME — EXHUMING CORPSE PENDING TRIAL — RIGHTS OF OTHER SIDE.

During the progress of a murder trial, defendant's counsel called the attention of the court to the fact that the corpse of the deceased had been exhumed by the state without notice to the defendant, and requested permission for his experts to examine said corpse. Held that, in the absence of authorities as to the legal necessity of such notice, it was not error for the court to defer granting the motion until made necessary by the evidence which the state should introduce predicated upon its examination of the corpse.

10. SAME — EVIDENCE OF MEDICAL EXPERTS — NOTICE OF EXAMINATION.

The evidence of medical experts as to the condition in which they found the corpse of deceased, on a second post mortem examination is admissible for the state on a murder trial, though such examination was made without notice to the defendant.

11. SAME — EVIDENCE — FLIGHT OF ACCUSED.

Upon a murder trial, the court, in substance, instructed the jury that defendant's flight, if established, raised a presumption of guilt; that the jury might take such flight into consideration in determining the question of defendant's guilt or innocence; but, if defendant did not flee to avoid arrest and trial, they should not consider his flight as an element at all in arriving at their verdict. Held, not erroneous.

12. SAME — INSTRUCTIONS — NECESSITY OF REQUEST.

The failure or omission of the judge to instruct the jury on a murder trial, in the absence of a request to that effect, that they could not convict upon the extrajudicial confessions of defendant alone, but must look for corroboration as to the corpus delicti in the other evidence, is not error, nor in conflict with section 1908, Rev. St., providing that the court must instruct upon all questions of law arising in the case which are necessary for the information of the jury in giving their verdict. SHERWOOD, J., dissenting.

13. SAME.

Where the instructions given are right as far as they go, the mere failure to instruct as to other proper matters is not available as error where no request so to further instruct is made.

14. SAME — NEW TRIAL — APPLICATION.

Section 1967, Rev. St. Mo., providing that motions for a new trial shall be filed before judgment, and within four days after the return of the verdict, is mandatory.

15. SAME — NEW TRIAL — MISCONDUCT OF JUROR.

To support a motion for a new trial on the ground that one of the jurors who tried the case did in fact have a hostile opinion against defendant, which said juror failed to disclose on his voir dire examination, affidavits of persons to the effect that they heard the juror prior to the trial denounce defendant were filed. The juror filed an affidavit denying all the allegations, and additional affidavits as to his character for truth were put in. Opposed to the state's affidavits were the affidavits of persons who had been partially impeached as credible witnesses. Held, that the court was justified in concluding that the charge against the juror was not proved.

16. SAME — ARGUMENTS — VITUPERATION.

In his closing argument, the prosecuting attorney, in reply to remarks by defendant's attorney as to the good character of the accused, stigmatized the defendant as a liar, thief, and forger. Held that, as there was evidence to sustain these expressions, the appellate court would not, under the circumstances, reverse.¹

17. SAME — REPLY TO DENUNCIATION.

In his closing argument, the state's attorney, replying to denunciations of the manner in which he had conducted the case for the state, said: "If the defense had acted honestly, uprightly, and fairly with the state, the state would not have presented testimony that it has done, being in ignorance of the defense they were to establish." Held, that the appellate court would not revise the discretionary refusal of the trial judge to interfere.¹

18. SAME — READING DECISION.

To strengthen his argument upon the value of certain depositions, defendant's counsel offered to read to the jury certain passages from a decision in one of the state reports. Held, that the discretion of the court in refusing to permit this was not improperly exercised. Where counsel deem the jury to have been insufficiently instructed, it is their duty to ask for further instructions.

19. SAME — APPEAL — EXCEPTION NOT TAKEN BELOW.

To present a question for review an exception to an error occurring on the trial must be taken at the time.

20. WITNESS — ACCUSED AS WITNESS — CROSS-EXAMINATION.

Under a statute which provided that, when the accused shall offer himself as a witness, he may be cross-examined as any other witness, the defendant, indicted for murder, took the stand in his own behalf. The theory of defense was that accused had accidentally killed deceased in administering chloroform to him in an attempted surgical operation. On his direct examination, defendant stated that he never had a medical diploma, had never been licensed as a physician, nor ever represented himself to be such. Held, that it was competent on his cross-examination to ask whether a certain document purporting to be a medical diploma to himself, which the state had put in evidence in its case in chief, and had again read on the cross-examination, was in defendant's own handwriting, whether it was an actual diploma, when he obtained possession of and for what purpose he wrote it.²

21. HOMICIDE — INSTRUCTIONS.

On a murder trial, the court instructed the jury that, if they believed defendant did kill and murder the deceased in the manner and form as charged in the indictment, they should convict. Held a proper instruction, though the qualification that such killing was done "willfully, deliberately, premeditatedly, and with malice aforethought," was not added; the court having in a previous part of the instructions explained that the indictment not only set forth the means and modes used by defendant in the killing, but had told them that it also charged the killing to have been done by these means, feloniously, willfully, deliberately, premeditatedly, and with malice aforethought.

22. SAME.

Nor did the court err in using the word "murder" in said instructions without explaining its meaning, inasmuch as it was only necessary for the jury to find that the accused did kill the deceased as charged in the indictment.

23. SAME — ERRONEOUS INSTRUCTION AS TO ONE COUNT — CONVICTION ON OTHER COUNT.

Upon a murder trial the court instructed the jury that the third count of the indictment charged defendant with depriving deceased of his life, whereas in fact said count did not so charge. Held that, although such count was defective, yet a conviction would be upheld if founded upon other counts of the indictment submitted under proper instructions.

Appeal from St. Louis criminal court; VAN WAGGONER, Judge.

The facts are sufficiently stated in the opinion.

The court instructed the jury as follows:

GENTLEMEN OF THE JURY: 1. By this indictment, the defendant, Hugh Motram Brooks, alias W. H. Maxwell, alias Walter H. Lennox Maxwell, M. D., alias Theodore Cecil D'Anguier, is charged with the offense of murder in the first degree. This indictment contains three counts, and in each of said counts the defendant is charged with the offense of murder in the first degree.

By the first count of this indictment it is alleged that at the ...