State v. Burns
| Citation | 33 Mo. 483 |
| Parties | THE STATE OF MISSOURI, Respondent, v. JOSEPH BURNS, Appellant. |
| Decision Date | 31 March 1863 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis Criminal Court.
Kribben, for appellant.
I. The defendant having been put upon his trial under a charge of murder, and nine jurors having been selected and accepted both on the part of the State and himself, it was error on the part of the court to permit the men so passed upon and accepted to separate unconditionally in order to await the filling up of the panel on the following day. (1 Gra. & Wat. on New Trials, 62, and notes; Commonwealth v. McCaul, 1 Va. Cases, 271-288; 1 Conn. 401.)
Every principle laid down in the above cited authorities respecting jurors sworn, applies with redoubled force to men sworn on their voir dire before being sworn in chief, the object of the law in keeping jurors confined, in capital cases, being solely to keep them free from outside influences. The very fact of their being accepted and selected as jurors is well calculated to prevent the objects sought to be attained by permitting their separation.
II. In a capital case, it matters not whether the defendant chose to take advantage of the error of the court in this respect by excepting to the panel on the following day, when the jury were finally sworn. The whole system of criminal jurisprudence and practice supports this assumption.
III. The court should have granted the several instructions asked by defendant concerning dying declarations. (1 Green. Ev. 156, et seq.; Starkey v. The People, 17 Ill.--.)
IV. The third instruction asked for the defendant, in words following--“A mere suspicion on the part of a police officer that certain parties are generally believed to be burglars, thieves, or the like, does not warrant such officer to arrest; and if, in the attempt to arrest any person who is not shown to have been guilty of some felony, or respecting whose guilt there are not reasonable grounds, the killing of such officer in the attempt to resist such arrest is not murder”--should have been granted; and the granting by the court of the instructions contradictory of the principle stated above was error and vitiates the verdict, the instructions given on that point being calculated to mislead the jury by assuming facts.
There must, under all circumstances, be reasonable ground on the part of the officer attempting the arrest of a person, that that person had been guilty of a particular felony, in order to constitute the homicide, committed in attempting to resist such arrest, murder; a mere general evil report that the party sought to be arrested was a notoriously bad character not warranting a forcible arrest.
Voullaire, for respondent.
The only point that can be raised is, whether the judge erred in dismissing, on one occasion upon the adjournment of the court, such persons as had been examined and accepted to serve as jurors, until the succeeding morning at the meeting of the court, and permitting said persons, with others, to be sworn as jurors in another case and try the same.
I. Said persons so accepted were not as yet jurors in the case. A juror is a citizen, duly qualified, legally summoned, empannelled, charged and sworn to try one or more issues of facts submitted to him and his co-jurors, and to give a judgment respecting the same. These persons so accepted had not been charged nor sworn to try the case; therefore there was no necessity to keep them together, &c.
II. Defendant, at any time before they were sworn, could have excused them to the number of his peremptory challenges. .)
The defendant and one Wilson were indicted at the March term, 1862, of the St. Louis Criminal Court, for the murder of John C. Gilmore, a police officer of the city of St. Louis. A severance being had, the defendant was tried at the July term following, and convicted of murder in the first degree, and sentenced to be executed. From this judgment he appeals to this court.
For the purposes of this case, it is unnecessary to give more than a mere outline of the testimony, as the main ground relied upon for a reversal has no reference to the evidence. In December, 1861, and about two o'clock at night, a burglary was committed upon the premises of a man by the name of Doctor, at the corner of Jefferson and Ninth streets, in St. Louis. Doctor being aroused by the noise, encountered one of the burglars, who knocked him down, and who afterwards proved to be Wilson. Doctor states that another man accompanied Wilson, as he distinctly heard him say, “you damned son of a bitch, if you don't shut up your mouth we will blow your brains out.” He did not see him so as to be able to recognize him. Shortly after the disappearance of the burglars, he roused some of his neighbors and got one of them to fire off a pistol, to attract the attention of the police. The deceased, in company with Bruder and Johnson, also policemen, soon came up, and Doctor informed them of what had transpired, describing the men as near as he could do so, and giving in detail the particulars of the robbery. Gilmore immediately said, “that is Wilson and Burns;” and about six o'clock of the same morning, in company with policeman Jacobs, went to the house of Wilson and Burns to arrest them, they living together with two disreputable women on Chambers street, near Thirteenth. Not finding them at home, Gilmore told Jacobs, who resided near by, to go and get his breakfast and return. Jacobs did so, and returned in about ten minutes. While away, he heard the report of a pistol and immediately ran round Chambers street to Thirteenth, when he saw deceased running up Thirteenth towards Madison street, and as he approached him, deceased said, “Oh, Jacobs, I am shot.” Deceased had his “star” on the left breast outside of his coat; deceased was wounded in the left jaw, and was bleeding from the mouth and jaw; deceased had a Colt's revolver; witness examined it and found all the chambers loaded, and with unexploded caps on them.
Two other witnesses testified that, about seven o'clock on the morning of the 10th December, they heard the report of a pistol, which came from the house of Wilson and Burns, both of whom were well known to witnesses, and immediately afterwards Wilson ran out of the house and through the gate to the pavement; stood still for a few seconds, looking back at the house with a smile on his face; Burns then came out of the house, having hold of deceased, with his left hand round his neck from behind, and holding deceased's right arm by the elbow, and after passing through the gate, threw the deceased down upon some curbstones lying upon the sidewalk, and then Wilson and Burns started off; deceased, who was bleeding from the mouth, arose and ran up the street for about fifty feet, and commenced staggering, and was then taken care of by Jacobs and some other friends.
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