State v. Burks

Decision Date04 February 1896
Citation132 Mo. 363,34 S.W. 48
PartiesSTATE v. BURKS.
CourtMissouri Supreme Court

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

George Burks was convicted of burglary with intent to rape, and appeals. Affirmed.

Ev. M. Bass, for appellant. The Attorney General and Jas. L. Stephens, for the State.

GANTT, P. J.

At the November term, 1894, of the circuit court of Boone county the defendant was indicted. We are informed by his counsel that the indictment, which was lost during the trial or since, contained two counts, one charging him with burglary with intent to rape a minor under the age of 14 years, and the other with a burglarious assault with intent to rape a minor under the age of 14 years. At the same term defendant filed his motion to quash, and it was sustained as to the second count and overruled as to the first. The cause was continued to the March term, 1895. On the 4th day of March, 1895, the cause came to trial, and resulted in a general verdict of guilty, without assessing any punishment. A motion for new trial was filed and overruled, and the defendant's punishment assessed by the court at 10 years in the penitentiary. From that sentence this appeal is prosecuted.

1. The clerk certifies in his transcript that "the indictment mysteriously disappeared during the time the jury was trying the case, and has never been found"; that, since the adjournment of the court, the prosecuting attorney had furnished him with a copy of the indictment, and asked its insertion in the transcript, and defendant had objected to his so doing because the indictment could not be thus supplied, but that he did insert said copy so furnished him by the prosecuting attorney. The clerk had no right to incorporate the paper purporting to be a copy of the indictment in the record, even though requested by the prosecuting attorney, and it cannot be treated as a part of the record. A lost indictment, like any other record, may be supplied by the court of whose record it constitutes a part. Of this there can be no doubt. State v. Simpson, 67 Mo. 647; State v. Smith, 71 Mo. 45. But it is one thing for a court to order a pleading substituted for one that is lost, after a hearing, and after being satisfied that the substituted copy is the same, or substantially the same, as that which has been lost or destroyed, and quite another for one of the parties, in vacation, or even in term time, to substitute a copy of a lost pleading without notice to his adversary, and without the knowledge or permission of the court whose record is to be thus affected. The so-called "indictment" incorporated in this record cannot be considered by us. That an indictment was found and filed; that one count of it was quashed; that defendant was duly arraigned on the remaining count, and pleaded not guilty; that defendant was tried and convicted on that indictment, — there can be no doubt. He now seeks to have that indictment declared insufficient on this appeal. In the absence of any evidence of its form or allegations, it must be presumed that it was a valid and sufficient charge of the offense of which he was convicted. It follows that it was the duty of the defendant to have the indictment certified to this court, and, if lost or destroyed without his knowledge or connivance, if he desired to have this court pass upon its sufficiency, he should have taken appropriate steps to supply it in the circuit court, which had the power to do so even at a subsequent term. The circuit court of Boone county is required to hold a term on the second Monday in June of each year. Defendant was convicted and sentenced in March, 1895. The court extended the time for filing the bill to the June term, 1895. In preparing his record, counsel was either apprised of the loss of the indictment, or by ordinary care could have been, and the indictment could have been supplied at the same term at which he filed his exceptions, but he made no effort whatever to do so. He who asserts error must show it.

2. It is now asserted that the jury were deceived into disobeying the instructions of the court by failing to assess the amount of the defendant's punishment because of oral communications or instructions of the jury by the sheriff to the foreman and by the foreman to the jury. A charge of so grave a character against a judge should not be made by counsel in an appellate court without having given the judge an opportunity to refute it in his own court. The motion for new trial does not contain any such a charge as this, and hence it is not open to review. It seems to be based entirely upon an affidavit of the sheriff in charge of the jury to the effect that, pending the deliberations of the jury, the foreman called to him and desired him to say to the court they could not agree upon a verdict, owing to their inability to agree upon the length of the term of punishment, and he desired an instruction for a less punishment. The court told him to inform the foreman that he had fully instructed them under the law. What connection this had with the failure of the jury to agree upon a term of punishment we are unable to see. The affidavit of the four jurors that they only agreed to the verdict because the foreman assured them that the court could and would reduce the punishment as stated in his instructions was clearly incompetent to impeach the verdict.

3. The court correctly defined a reasonable doubt, and there was no error in not giving another instruction on the same subject.

4. To sustain his defense that he had entered the house of the prosecuting witness in pursuance of an agreement with one Maud Bentley, a negro woman, who had stayed in Rachel Cowden's house with her children, during a visit, shortly prior to the time of the alleged burglary, and had not forcibly entered for the purpose of ravishing the girl Emma Cowden, defendant called said Maud Bentley as a witness. She denied having had the conversation and agreement with defendant which he sought to prove. She denied that she slept at Rachel Cowden's house that night. She was fully corroborated by Rosa McAfee, another of defendant's witnesses, as to the fact of sleeping at Rosa McAfee's that night. She was asked if she did not state to one or more parties (not naming them), in Rocheport, after the preliminary trial, and in Columbia, during the trial, that Burks did ask, and tried to persuade her to consent, to his coming to her room that night, and that she told him not to come, and had refused to consent to...

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