State v. Burks
| Citation | 34 S.W. 48,132 Mo. 363 |
| Parties | The State v. Burks, Appellant |
| Decision Date | 04 February 1896 |
| Court | United States State Supreme Court of Missouri |
Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.
Affirmed.
Ev. M Bass for appellant.
(1) No person should be convicted as a felon unless upon a good and sufficient indictment found and returned into court by a grand jury duly impaneled, charged and sworn, and his guilt otherwise ascertained and determined in accordance with all due forms of law. The record in this case shows the loss or destruction of the original indictment pending the trial, and also the attempted substitution in its stead of a new one by the prosecuting attorney, after the appeal was granted and the bill of exceptions duly allowed and signed by the court. (2) A lost or destroyed indictment may be supplied by the court, under proper procedure and proof during the term and before appeal granted, but not afterward by the prosecuting attorney of his own volition, and without affidavit or evidence otherwise that it is a true copy. State v Simpson, 67 Mo. 647; State v. Smith, 71 Mo. 45. (3) The special entry of the clerk (referred to above) shows that the new or pretended indictment in this case was never presented to the court by the foreman of the grand jury and filed as a record, nor is it now a part of the record in the case, nor has it the earmarks of a good and valid indictment. R. S. 1889, sec. 4092; State v. Freeman, 21 Mo. 481 483; State v. Lord, 118 Mo. 1. (4) The jury were misled by the oral instruction of the court into returning a verdict without assessing the punishment. The affidavits of the jurors were competent to impeach the verdict. (5) The defendant should have been permitted under the plea of surprise and deception to treat the witness Maud Bentley as an adverse and hostile witness, and to show that her adverse testimony was a surprise and unexpected and was the result of improper influence pending the trial. The right to impeach one's own witness under such circumstances should never be denied a defendant charged with a felony. 1 Thompson on Trials, sec. 512; McDaniel v. State, 53 Ga. 253. (6) "The supreme court will interfere and set a verdict aside where it is the result of prejudice, passion, and partiality;" "and in criminal cases this court has never abdicated the right they possess to overturn verdicts which are not based upon the cornerstone of substantial justice." State v. Primm, 98 Mo. 368. "Appellate courts will not hesitate to review the whole evidence in a cause where the verdict of a jury is so strongly opposed to all reasonable probabilities as to be the manifest result of mistake, passion, or prejudice." Mauerman v. Railroad, 41 Mo.App. 348; Adler v. Wagner, 47 Mo.App. 25; Lovell v. Davis, 52 Mo.App. 342. (7) The overwhelming testimony in this case shows the defendant entered the house through an open door and with a different intent than as charged, and was entitled to a verdict of acquittal on the charge of burglary. State v. Kennedy, 16 Mo.App. 287, and cases cited; State v. Tutt, 63 Mo. 595.
R. F. Walker, attorney general, and J. L. Stephens, prosecuting attorney, for the state.
(1) In the absence of proof to the contrary it will be presumed that the copy of the indictment was a correct one. Long v. People, 135 Ill. 435; Hubbard v. State, 24 S.W. 648. (2) Even in cases where the trial is not concluded where the loss of the indictment is discovered, the court may proceed upon a true copy being substituted by the prosecuting attorney. State v. Rivers, 58 Iowa 102; Miller v. State, 40 Ark. 488; State v. Shank, 79 Iowa 47; State v. Gardner, 13 Lea. 134; Bradford v. State, 54 Ala. 230; Buckner v. State, 56 Ind. 208; Millar v. State, 2 Kan. 174. (3) A verdict can not be impeached by the affidavit of jurors. This has been held in an unbroken line of decisions by this court. State v. Wood, 124 Mo. 412; State v. Robinson, 117 Mo. 649; State v. Schaeffer, 116 Mo. 96; State v. Dusenberry, 112 Mo. 277. Nor can a verdict be impeached by the affidavit of a person who derives his information from a juror. State v. Schaeffer, supra. (4) The instructions properly declared the law and presented every phase of the case under the evidence. They are not subject to objection. State v. McCaskey, 104 Mo. 644. (5) Where a jury returns a verdict of guilty as charged, but do not fix the punishment, the court is authorized to assess and declare the same. R. S. 1889, sec. 4230; State v. Dennison, 108 Mo. 541; State v. Foster, 115 Mo. 448.
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 fourteen years, and the other, with a burglarious assault with intent to rape a minor under the age of fourteen 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 fourth 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 ten years in the penitentiary. From that sentence this appeal is prosecuted.
I. 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 can not 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 can not 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.
II. 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.
III. The court correctly defined a reasonable doubt and there was no error in not giving another instruction on the same subject.
IV. To sustain...
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