State v. Burns

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBAY
Citation33 Mo. 483
PartiesTHE STATE OF MISSOURI, Respondent, v. JOSEPH BURNS, Appellant.
Decision Date31 March 1863

33 Mo. 483

THE STATE OF MISSOURI, Respondent,
v.
JOSEPH BURNS, Appellant.

Supreme Court of Missouri.

March Term, 1863.


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

[33 Mo. 484]

jurisprudence and practice supports this assumption. (Pfeiffer v. The Commonwealth, 3 Harris, Pa., 468; Cochran v. The State, 7 Humph. 544; Hines v. The State, 8 Id. 599; McLain v. The State, 10 Yerg. 241; McCann v. The State, 9 S. & M. 465; Bowles v. The State, 13 Id. 398; Cornelius v. The State, 7 Eng., Ark., 782.)

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.

[33 Mo. 485]

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. (Whart. Crim. Law, 273; Tool v. Com., 11 Leigh, 714; 1 Burr's Trial, 382; Epe's case, 5 Grat. 681; Hines v. State, 8 Humph. 599; Martin's case, 2 Leigh, 750; Rex v. Wolff et al., 1 Chit. 406, 419, & c.; State v. McKee, 1 Baily, 651; State v. Miller, 1 Dev. & Bat. 509, &c.; State v. Benket et al. 2 Mills' Const. 155, s. p.; Whar. Crim. Law, 1012, & c.; State v. Babcock, 1 Conn. 401.)

II. Defendant, at any time before they were sworn, could have excused them to the number of his peremptory challenges. (Whart. Crim. Law, 971; 5 Leigh, 715, Hendricks' case; State v. Cameron, 2 Chand., Wis., 181; Morris v. State, 7 Blackf. 608; Manly v. State, 7 Blackf. 593; Hooker v. State, 4 Ohio, 350, and authorities therein cited; Beauchamp v. State, 6 Blackf. 307; Williams v. State, 3 Geo. 459.)


BAY, Judge, delivered the opinion of the court.

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...

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13 practice notes
  • State v. Phillips
    • United States
    • United States State Supreme Court of Iowa
    • December 20, 1902
    ...is conclusive, and must be so considered by the jury in deliberating upon their verdict. Rex v. John, 1 East P. C. 357; State v. Burns, 33 Mo. 483;State v. Simon, 50 Mo. 370;Smith v. State, 9 Humph. 9. Another line of decisions hold, and we think with the better reason, that while it is for......
  • State v. Phillips
    • United States
    • United States State Supreme Court of Iowa
    • December 20, 1902
    ...is conclusive, and must be so considered by the jury in deliberating upon their verdict. Rex v. John, 1 East P.C. 357; State v. Burns, 33 Mo. 483; State v. Simon, 50 Mo. 370; Smith v. State, 28 Tenn. 9, 9 Hum. 9. Another line of decisions hold, and we think with the better reason, that whil......
  • Commonwealth v. Ventura
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 1, 1936
    ...jury is completed. For cases to the contrary, see Tooel v. Commonwealth, 11 Leigh (Va.) 714; Epes' Case, 5 Grat. (Va.) 676;State v. Burns, 33 Mo. 483.’ See, also, 1 Burr's Trial, 382. The personal presence of the defendants at the trial was essential. Commonwealth v. McCarthy, 163 Mass. 458......
  • Commonwealth v. Ventura
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 1, 1936
    ...jury is completed. For cases to the contrary, see Tooel v. Commonwealth, 11 Leigh (Va.) 714; Epes' Case, 5 Grat. (Va.) 676; State v. Burns, 33 Mo. 483.’ See, also, 1 Burr's Trial, 382. The personal presence of the defendants at the trial was essential. Commonwealth v. McCarthy, 163 Mass. 45......
  • Request a trial to view additional results
13 cases
  • State v. Phillips
    • United States
    • United States State Supreme Court of Iowa
    • December 20, 1902
    ...is conclusive, and must be so considered by the jury in deliberating upon their verdict. Rex v. John, 1 East P. C. 357; State v. Burns, 33 Mo. 483;State v. Simon, 50 Mo. 370;Smith v. State, 9 Humph. 9. Another line of decisions hold, and we think with the better reason, that while it is for......
  • State v. Phillips
    • United States
    • United States State Supreme Court of Iowa
    • December 20, 1902
    ...is conclusive, and must be so considered by the jury in deliberating upon their verdict. Rex v. John, 1 East P.C. 357; State v. Burns, 33 Mo. 483; State v. Simon, 50 Mo. 370; Smith v. State, 28 Tenn. 9, 9 Hum. 9. Another line of decisions hold, and we think with the better reason, that whil......
  • Commonwealth v. Ventura
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 1, 1936
    ...jury is completed. For cases to the contrary, see Tooel v. Commonwealth, 11 Leigh (Va.) 714; Epes' Case, 5 Grat. (Va.) 676;State v. Burns, 33 Mo. 483.’ See, also, 1 Burr's Trial, 382. The personal presence of the defendants at the trial was essential. Commonwealth v. McCarthy, 163 Mass. 458......
  • Commonwealth v. Ventura
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 1, 1936
    ...jury is completed. For cases to the contrary, see Tooel v. Commonwealth, 11 Leigh (Va.) 714; Epes' Case, 5 Grat. (Va.) 676; State v. Burns, 33 Mo. 483.’ See, also, 1 Burr's Trial, 382. The personal presence of the defendants at the trial was essential. Commonwealth v. McCarthy, 163 Mass. 45......
  • Request a trial to view additional results

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