State v. Brown
| Decision Date | 30 April 1880 |
| Citation | 71 Mo. 454 |
| Parties | THE STATE v. BROWN, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Moberly Common Pleas Court.--HON. G. H. BURCKHARTT, Judge.
AFFIRMED.
Martin & Priest for appellant.
A. H. Waller, Prosecuting Attorney, J. L. Smith, Attorney General, H. M. Porter, T. B. Reed and U. S. Hall for the State.
The defendant was indicted at the July term, 1878, of the Moberly court of common pleas, for the murder of his mother-in-law, Mrs. Parrish, on the 23d day of July, 1878. The result of the trial was a conviction of murder in the first degree. I hardly think it necessary to state in detail the facts upon which the verdict was based, inasmuch as it is conceded that the killing was a clear case of murder, unless the defendant was insane, and the only objections here relate to points having no connection with the guilt or innocence of the accused.
The first point made is that the court which tried the case had no jurisdiction. This is based upon the fifth section of the schedule to the constitution of 1875, which declares that “all courts of common pleas existing and organized in cities and towns having a population exceeding 3,500 inhabitants, and such as by the law of their creation are presided over by a circuit judge, shall continue to exist and exercise their present jurisdiction until otherwise provided by law.” By the act of April 23d, 1877, Cairo township was included in the jurisdiction of said court, and this case was clearly within the jurisdiction of this court, unless that act was unconstitutional. We are unable to appreciate the force of this objection, since the constitution seems to have left to the legislature the power to enlarge or diminish the jurisdiction of these courts of common pleas, in existence when it was passed, or to abolish them entirely. In this case the jurisdiction was enlarged so as to extend to an adjoining township and the power to make this extension seems to have been expressly confided to the legislature.
The second point urged here is, that the application for a change of venue should have been granted. One of the grounds upon which this application was based was the prejudice of the judge; but as there was no affidavit to sustain this, that ground is confessedly insufficient to authorize our interference.
The other ground was that the prejudice of the inhabitants of Randolph county was so great that the accused could not get a fair trial. Upon this point a number of witnesses were examined, pro and con. The court decided against this application, and we are not disposed to review this decision upon the question of fact presented.
The next point, and the only one of importance, is whether the jurors in this case were authorized to try it. The objection to these jurors was, that they had formed an opinion from newspaper reports of the testimony given on the first trial, which it would require evidence to change. We have recently decided this point in two cases, State v. Core, 70 Mo. 491; State v. Barton, 71 Mo. 288, and it was decided the same way in State v. Davis, 29 Mo. 392, and we adhere to this opinion. In fact, if such opinions are to exclude jurors, in a case which creates great excitement in a county, we might as well exclude the most intelligent men summoned on a jury, for such men will, of course, form some opinion from the reports furnished them.
In regard to the question of insanity, which seems to have been the only defense relied on, the instructions of the court are not objected to. In truth, there was not a particle of evidence to justify any instructions on the subject. The only insanity of the defendant was a reckless and malignant disposition which was established by proof of his conduct long before the murder. The instructions on the subject have heretofore been approved by this court. State v. Kring, 64 Mo. 591. The judgment is affirmed, with the concurrence of SHERWOOD, C. J. and NORTON, J.
Not concurring in the opinion of the court, it is proper that I should briefly state the grounds of my dissent. The “Moberly Monitor” and “The Herald,” newspapers published in Randolph county, when the alleged murder was committed, and where the defendant was twice tried for the crime, published the proceedings and evidence on the first trial. W. A. Wright, Duffield, Reed, Winn, and others, summoned as jurors for the second trial,...
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