State v. Collins

• Citation: 86 Mo. 245
• Parties: THE STATE v. COLLINS, Appellant.
• Decision Date: 30 April 1885
• Court: United States State Supreme Court of Missouri

86 Mo. 245

THE STATE

v.COLLINS, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Pike Circuit Court.--HON. ELIJAH ROBINSON, Judge.

AFFIRMED.

Clark & Tapley and Forrist & Fry for appellant.

(1) The record proper does not show that any orders were made by the court, between the first and second trials, and fails to show that the indictment was signed by the prosecuting attorney. (2) The court erred in procuring a panel of forty qualified jurors on the sixth of March, when the trial was set for the tenth of March. The whole forty may have pre-judged the case between these dates. The case being set for the tenth, all process was returnable on that day. R. S., secs. 1903, 1904, 1906, 1907, 3722. (3) It was error to overrule appellant's motion to continue the cause. R. S., sec. 1848; Const. of Mo., art. 2, sec. 22; State v. Hickman, 75 Mo. 419, et seq. (4) The court erred in its definition of deliberation and in failing to define the term provocation. State v. Kotovsky, 74 Mo. 249, and cases cited. (5) The court erred in not giving an instruction for murder in the second degree, and in regard to the law of self-defence. (6) The cause should be reversed because of the separation of the jury. The statute is peremptory and itself stands for a reason. R. S., sec. 1907; State v. Collins, 81 Mo. 652.

B. G. Boone, Attorney General, for the state.

(1) The indictment is sufficient. Whar. on Hom. (2 Ed.) sec. 791; State v. Steeley, 65 Mo. 218; State v. Ward, 74 Mo. 253. (2) The remarks made by counsel for the state are not open to objection, unless the prosecutor misstates the law, or the facts, in his address to the jury, or takes some undue advantage of the accused, his conduct will not be reviewed by this court. State v. Hopper, 71 Mo. 433; State v. Stark, 72 Mo. 37; State v. Hoffman, 78 Mo. 256. (3) Defendant was not prejudiced by the action of the court in overruling his motion for continuance. His witnesses were brought in by attachment and were present when their testimony was wanted. State v. Ward, 74 Mo. 253, and cases cited; State v. Fox, 79 Mo. 109. (4) There was no evidence to support an instruction for murder in the second degree, and it should not have been given. State v. Hopper, 71 Mo. 425; State v. Talbot, 73 Mo. 347. (5) Defendant's objection to the constitution of the trial jury came too late after verdict. State v. Jones, 61 Mo. 232; State v. Ward, 74 Mo. 256, and cases cited. Statutes in respect to the impanneling of jurors, in criminal cases, are directory. State v. Knight, 61 Mo, 373; State v. Ward, supra. (6) To hold that such separations of the jury, as occurred in this case, warrant a reversal of the judgment, would render the trial of capital cases in this state practically impossible. State v. Bell, 70 Mo. 633, and cases cited. (7) The jurors mentioned in defendant's twentieth objection were not disqualified. Sec. 1897, R. S., 1879; State v. Walton, 74 Mo. 270; State v. Burgess, 78 Mo. 234.

NORTON, J.

The defendant was indicted in the circuit court of Pike county, at its September term, 1883, for murder in the first degree, in killing Owen Utterback. He was put upon his trial at the March term, 1884, of said court, resulting in his conviction of the crime as charged. This judgment, on defendant's appeal to this court, was reversed, and the cause was remanded, and defendant being again put upon his trial, at the March term, 1885, of said court, he was again convicted of murder in the first degree, and the cause is before us, the second time, on defendant's appeal.

It is objected that the record proper does not show that any orders were made by the court between the first and second trials, and that it fails to show that the indictment was signed by the prosecuting attorney. This objection is not well taken; the record shows that the indictment was returned into court by the grand jury, at its September term, 1883, and that it is signed by Edward T. Smith, prosecuting attorney; it further shows that the court convened on the second day of March, 1885, and that the trial of defendant was commenced on the tenth day of said month, and was adjourned, from day to day, till the twelfth day of said month, when the jury returned their verdict.

It appears, from the record, that the court began its session on the second day of March, 1885, and that this cause was placed on the docket for Tuesday, the tenth of March, to which time the subpœnas for the witnesses were returnable; that a venire for a jury was ordered, returnable on Friday, the sixth of March, at which time the persons summoned were examined, touching their qualifications as jurors, and forty persons were found by the court qualified to serve as jurors, a list of whom was furnished to defendant, on Saturday morning, the seventh; that on the tenth of March, the day the cause was docketed for trial, the said jurors appeared in court, and the state, as well as defendant, proceeded to make their peremptory challenges, neither the state nor defendant, nor his counsel, expressing any desire to make any further examination of said jurors. It is insisted that the action of the court was erroneous, in procuring a panel of forty qualified jurors, on the sixth of March, when the cause could not be tried till the tenth, inasmuch as the jurors, who might have been qualified on the sixth, might have become disqualified between the sixth and tenth of March. We are of the opinion that this point is not well taken, inasmuch as when said jurors appeared on the tenth, defendant or his counsel, if they had so desired, could have examined them to ascertain the fact whether they, or any of them, had become disqualified by anything done or said between the said two dates.

The course pursued by the circuit judge is not open to the objection made, and the adoption of any other course would lead to confusion in the orderlv conduct of the business in such courts, and be subject to the same objection here made. Suppose that the venire in question had been returned on the tenth, the day the cause stood for trial, and the court had then found a panel of forty persons, who were competent to serve as jurors; the defendant, under the law, would then have been entitled to a list of such jurors, forty-eight hours before the trial, thus necessitating its postponement for two days, and when called, after the expiration of forty-eight hours, the objection that the jurors who had been found qualified two days before might have become disqualified in the interim, might be made with as much propriety and reason as it is now made to the action that was taken. When a person stands indicted for murder in the first degree, the legislature has wisely provided that he shall not be put upon his trial until he has been furnished, forty-eight hours before the trial, with a list of forty qualified jurors. Defendant has had the full benefit of this humane provision, such a list having been furnished seventy-two hours before he was called upon to submit himself to a trial.

It is also insisted, that the judgment should be reversed on account of the separation of the jury. It appears from the affidavit of one of the deputy sheriffs, having the jury in charge, that, during the progress of the trial, at the...