State v. Buckner

• Decision Date: 31 March 1857
• Citation: 25 Mo. 167
• Parties: THE STATE, Respondent, v. Buckner, Appellant.
• Court: Missouri Supreme Court

25 Mo. 167

THE STATE, Respondent,

v.Buckner, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. In the case of an indictment for murder, the defendant is entitled to a panel of thirty-six jurors; also to have a list of such jurors delivered to him forty-eight hours before the trial. The “Act to regulate and pay grand and petit jurors in Stoddard county,” approved February 13th, 1855 (Sess. Acts, 1855, p. 531), does not in any way affect these rights.

2. The Revised Code of 1855 governs such proceedings had after May 1st, 1856, although the indictment was pending previous to that date. (See State v. Phillips & Ross, 24 Mo. 475.)

3. If a regular panel of jurors be exhausted before a jury is obtained, the defendant is not entitled to have any particular number of by-standers or talesmen summoned from which to complete the jury.

4. Where an affidavit for a continuance is filed, the court should not permit it to be strengthened by other affidavits of the same person.

5. In the case of an indictment for murder, it is error to receive a verdict of the jury in the absence of the defendant. He must be personally present, not only during the trial, but at the time of the rendition of the verdict.

Appeal from Stoddard Circuit Court.

The facts sufficiently appear in the opinion of the court.

C. G. Mauro (circuit attorney), for the State.

RYLAND, Judge, delivered the opinion of the court.

Sarah Buckner was indicted at the March term of the Bollinger Circuit Court, in the year 1855, as principal in the second degree of the murder in the first degree of Whiston Buckner. On the application of the prisoner the venue was changed to the Circuit Court of Stoddard county. The trial of the cause was postponed from term to term until the May term, 1856. At this term the prisoner moved for a continuance, and the record shows that she filed three different affidavits in support of the motion. This motion was overruled, and the defendant excepted, and saved the point by a bill of exceptions. This point will be noticed hereafter. When the trial was ordered, the record shows that the prisoner, by her counsel, “moved the court to order the sheriff to summon a jury of thirty-six to try this cause,” which motion was overruled, and excepted to, and this point was saved by the defendant by bill of exceptions. The bill of exceptions shows that the prisoner moved the court to order the sheriff to summon thirty-six venire men, out of whom a jury might be selected; and “that she might be furnished with a copy of the names of those summoned forty-eight hours previous to the trial; but the court refused to order the sheriff so to do, and decided that, under the laws regulating jurors in Stoddard county, she was not entitled to have the said number of jurors expressly summoned, and was not entitled to a copy of the panel forty-eight hours; but defendant's attorney could obtain a copy any time from the clerk.” The record also shows “that during the progress of impanneling the jury, the regular panel of twenty-seven being exhausted, and the accused having challenged peremptorily but six, and one juror being still wanting, the defendant moved the court to direct the sheriff to summon fourteen jurors, which motion was overruled, and excepted to.” This point also saved by bill of exceptions.

There were divers matters in regard to questions proposed to some of the witnesses, which the court overruled, and which were excepted to; but we consider them of no importance. The jury found the defendant guilty of murder in the first degree. This verdict was rendered in the absence of the prisoner. The sheriff, when called on to produce her in court in order to hear the verdict, replied to the court that the prisoner had escaped from his custody, and that he could not then produce her in court. The court received the verdict and discharged the jury. During the term the sheriff again brought the prisoner into court. She moved for a new trial; which, being overruled, she excepted, and prayed an appeal to this court. The court below passed sentence upon the prisoner, but ordered the same to be suspended until the judgment of this court be had upon the premises. The appeal was taken at the May term, 1856, and the record filed in this court on the 9th day of June, 1856.

The record in this case is presented without any brief or without the appearance of any counsel. In examining this record we come to the conclusion that the court below erred in refusing to direct the sheriff to summon thirty-six venire men out of whom a jury might be impanneled; also erred in refusing to direct that a copy of this venire be delivered to the defendant or to her counsel forty-eight hours before commencing the trial. The “Act to regulate and pay grand and petit jurors in Stoddard county,” approved February 13th, 1855, does not take away the right of the defendant to challenge peremptorily twenty persons summoned as jurors in trials for murder; nor does it pretend to take away the right of the accused to have a copy of the venire, from which the jury is to be sworn, forty-eight hours before commencing to impannel the jury. The statute concerning practice in criminal cases (art. 6, § 6,) gives to the State the right, in all criminal trials, to challenge peremptorily four jurors. Section 7 declares that “there shall be summoned and returned, in every criminal cause, a number of qualified jurors equal to the number of peremptory challenges, and twelve in addition; and no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained.” Section 8. “A list of the jurors summoned shall be delivered to the defendant in the cases specified in the two first subdivisions of the fourth section of this article, at least forty-eight hours before the trial, and in other cases before the jury is sworn, if such list be requested.” Section 4, first subdivision: “If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, the peremptory challenges shall be twenty, and no more, allowed to the defendant.” The crime of murder charged in the indictment in this case is punishable with death. Then the accused is allowed to challenge twenty peremptorily--the State four--making twenty-four challenges, and twelve in addition--making thirty-six. This number is required to be summoned in all such cases; and in order to make this right of challenge beneficial to the prisoner, she has the right to a copy of the list of the thirty-six forty-eight hours before the trial. The statute concerning...