State v. Burnside

• Decision Date: 28 February 1866
• Parties: THE STATE OF MISSOURI, Respondent, v. JAMES L. BURNSIDE, Appellant.
• Court: Missouri Supreme Court

37 Mo. 343

THE STATE OF MISSOURI, Respondent,

v.JAMES L. BURNSIDE, Appellant.

Supreme Court of Missouri.

Febuary Term, 1866.

Appeal from Livingston Circuit Court.

Hall & Oliver and Dixon, for appellant.

The court erred in refusing to set aside the verdict and grant a new trial, because one of the jury had, prior to the trial, expressed the opinion that appellant was guilty of the crime charged against him, and that he should be punished therefor, and upon his voir dire swore that he made no such expression; and because the verdict of the jury was glaringly against the evidence in the cause, and manifestly against the law (Busick v. The State, 19 Ohio, 199, et seq.; 2 Gra. & Water. N. Tr. 399, &c. 22 Me. 198.)

The court erred in refusing to permit Mrs. Ella Barnes, a witness offered by appellant, to testify in the cause. She was a competent witness for appellant on his separate trial, although she was the wife of James Barnes, who was appellant's co-defendant in the indictment. (Whart. Am. Crim. Law, 295; 2 Russ. Crimes, 696, & note; 1 Greenl. Ev. § 335; 1 Mass. 15; 1 Gray, 555; 1 Phil. Ev. 75, & note; 2 Stark. Ev., 3 Am. ed. 707-8, note 1; ib. 412, note 2.)Asper, for respondent.

I. To reverse a conviction because a verdict is against evidence, it must be where the weight of evidence not only preponderates, but greatly and glaringly preponderates. The rule is well settled in this State. (Hartt v. Leavenworth, 11 Mo. 629; McKnight v. Wells, 1 Mo. 13; Campbell v. Hood, 6 Mo. 218; Lackey v. Lane, 7 Mo. 220; McLean v. Bragg, 30 Mo. 262; Irving v. Riddlesbarger, 29 Mo. 340.) There must be no evidence. (Heyneman v. Garneau, 33 Mo. 565; Weber v. Degenhardt, 24 Mo. 458; Morris v. Barnes, 34 Mo. 412.)

II. The court did not err in refusing to admit Mrs. Ella Barnes to testify. She was the wife of James Barnes, a co-defendant, indicted with defendant, not convicted nor any way released. The statute on evidence leaves the question as at common law. (R. C. 1855, p. 1578.) At common law the wife of an accomplice or co-defendant is not admissible any more than the husband. (1 Water. Arch. Crim. Law, 496; Whar. Cr. L. 294; Rosc. Crim. Ev. 113, & authorities.) In this country the cases conflict somewhat, but the weight of authority is that such evidence is inadmissible. (Note 1, Water. Arch. Crim. L. 16, 496; 10 Pick. 57.) In this State the rule was unsettled for several years. In Garrett v. The State, 6 Mo. 1, the court held that an accomplice was a witness, whether discharged or convicted; and if this was still the law, the wife certainly would be a witness. But this rule was doubted in the case of McMullen v. The State, 13 Mo. 30; and in the case of Roberts v. The State, 15 Mo. 59, it was settled that the accomplice was not a witness. This has been held to be the law up to this time. In this latter case, the court has referred approvingly to two cases, one English and the other American, where it was held that the wife of a co-defendant not on trial could not be admitted as a witness for the other co-defendant, on trial. This seems to give the weight of authority of the Supreme Court of this State to the exclusion of such a witness.

Rex v. Locker, 5 Esp. 107; State v. Smith, 2 Ired. 405; Pullen v. People, 1 Doug., Mich. 48; Com. v. Garland, 1 Mass. 15; were all cases where the wife was held incompetent. Two of these cases are quoted with approval by our court, in 15 Mo. 59.

The case of People v. Bill, 10 Johns. 95; Com. v. Robinson, 1 Gray, Mass.; the case of Com. v. Barton, 10 Pick. 57, and in the case of Roberts v. State, 15 Mo. 59, it has been settled beyond a peradventure that the wife of an accomplice is an incompetent witness for a co-defendant. This is on the ground of public policy, which principle applies to the wife with force of equal strength as to the co-defendant. It is said in Greenleaf that the wife of a joint trespasser is not a competent witness for a co-defendant, even if the husband has been proven guilty of the charge. (1 Greenl. § 335; People v. Williams, 19 Wend. 377.)

III. The court did not err in refusing the new trial on the question of fact made in the motion, as to the expression of an opinion by a juror, John Austin.

It is alleged that on a certain day three boys heard Austin say in his shop that these men, Barnes and Burnside, were guilty, and should be punished. Austin denied, on his trial as a juror, that he had ever expressed an opinion as to the guilt or innocence of defendant. He so says in an affidavit, and his partner says he was with him all the time, and never heard him express an opinion as to their guilt or innocence. Austin is sustained by half a dozen of his neighbors, citizens of the town, as to his character for honesty, and for truth and veracity. (Whart. Cr. L. 654, & note 1, old edition; ib. 655, note t.; Conwell v. Anderson, 2 Ind. 122; 5 U. S. Dig. 434, ¶¶ 112, 115, 119; 12 U. S. Dig. 446-7, ¶¶ 34-5; Lisle v. The State, 6 Mo. 426; Com. v. Flanegan, 7 Watts & Serg. 415.) A mere casual expression of opinion formed from rumor, or a partial statement of the case, is not a sufficient cause of challenge or new trial. (Lisle v. State, 6 Mo. 426; Baldwin v. State, 12 Mo. 224; State v. Rose, 32 Mo. 354; 7 Watts & Serg. 415.)

The question of corruption in the juror is one to be submitted to the discretion and decision of the judge who tried the cause, upon all the facts in the case--the evidence of the juror, and affidavits to sustain and impeach him. (State v. Ross, 29 Mo. 51; Whart. Crim. Law, 655, note 1.)

The affidavit of a juror is received to sustain a verdict, but never to impeach it. (Dana v. Tucker, 4 Johns. 487; Lisle v. State, 6 Mo. 428; State v. Ross, 29 Mo. 51; Whart. 655, & note.)

WAGNER, Judge, delivered the opinion of the court.

The appellant and one James Barnes were jointly indicted in the Cir cuit Court of Livingston county, for the crime of robbery. Defendants served on the trial, and at the November term, 1865, of the Circuit Court for said county, appellant was separately tried, convicted, and sentenced to the penitentiary for ten years. After making a motion for a new trial, and also in arrest of judgment, both of which were overruled, he appealed to this court.

The first ground that is insisted on for a reversal is, that the court erred in not setting aside the verdict, because it was against the evidence in the cause. Where there is no evidence, or where the verdict is wholly unsupported by evidence, this court will interfere and grant a new trial, in furtherance of the ends of justice; but where it is simply a preponderance, or a question as to the weight of evidence, this court has invariably abstained from all interference.

The jury are, from the very nature of things, the rightful and legitimate triers of the facts, and from their peculiar organization they are the most competent to determine the proper credibility which is to be attached to the witnesses, and to weigh their evidence and find accordingly. It must therefore be a case glaring and palpable, which would induce us to interfere and disturb their finding. In examining the evidence, as preserved in the bill of exceptions, we cannot say that this is such a case. There is most obviously not a total want of testimony, for there are circumstances, which, if taken together, go very far to support the verdict.

And it would be impossible to review this testimony, and give it its proper weight and credit, without knowing something of the character of the witnesses, hearing them detail it, and being conversant with any bias or influence which may have operated on them. No error is perceived in the ruling of the court, in refusing to set aside the verdict for this reason.

The next ground assigned for a new trial is, that one of the jurors who served on the trial, had prejudged the case; that the answers given by him, when the usual questions were propounded, as to whether he had formed or expressed an opinion, were not true; and that this disqualification was not known to the appellant till after the trial and verdict in this cause. To support this ground the affidavits of three persons were filed, stating that, before the trial, they heard the juror declare that he believed Barnes and the appellant were guilty, and that they ought to be punished. The counter affidavit of the juror was filed, denying that he ever made any such statement, and, in addition thereto, the affidavit of others, deposing to his character for veracity, and affirming that he was worthy of belief on oath. Another witness, who works in the shop with him, swore that he was in the shop with him on the day when the declaration of the juror concerning the guilt of the accused was alleged to have been made, and that he heard him make use of no such statement. It is to be here observed that the affidavit of the witnesses, ascribing the statement to the juror, are direct and positive, and cannot be overcome by the negative testimony by which they were sought to be counteracted. No effort was made to impeach their character for veracity, and hence we must take their affidavits to be true. True, the expression may have escaped the juror's mind, and it is not necessary to impute moral turpitude to him; but he was legally disqualified, and the appellant had the high and sacred constitutional privilege of being tried by men who were impartial, and who had never, at any time, prejudged his cause. Public policy dictates that the administration of public justice should not only be free from reproach, but also...