State v. Collins

• Decision Date: 30 April 1884
• Citation: 81 Mo. 652
• Parties: THE STATE v. COLLINS, Appellant.
• Court: Missouri Supreme Court

81 Mo. 652

THE STATE

v.COLLINS, Appellant.

Supreme Court of Missouri.

April Term, 1884.

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

REVERSED.

W. O. Forrist for appellant.

(1) The court erred in overruling defendant's motion for a new trial, based upon the ground that no list of the names of forty persons, out of which the jury was to be selected, had been served upon defendant. R. S. 1879, §§ 1903, 1904. While a list of forty names was served upon defendant, it contained the names of but thirty-nine persons. There was no such man as R. L. Dinsmore on the list. The clerk substituted the name Dinslow on the list used for making challenges for Dinsmore contained on the list served. Such practice should not receive the sanction of this court. (2) It was error not to withdraw from the jury, by instruction, all evidence as to the finding and identification of the gun on defendant's premises. There was no proof of its ownership, or that defendant had any connection with it. (3) It was error to continue the case for twenty-four hours to enable a juror to visit his sick child. The court should have withdrawn a juror, discharged the entire jury and called a new one, or continued the cause. Nor does it make any difference that the record fails to show that defendant objected to this action of the court. It was a matter about which he could not speak, and should not have been called upon to do so. R. v. Woolf, 1 Chitty R. 401. (4) The court erred in not instructing the jury as to the law of murder in the second degree. There was evidence in the case tending to show hot blood, existence of a quarrel and absence of deliberation. It was the duty of the court to give such instruction whether asked or not. State v. Branstetter, 65 Mo. 149. The evidence required such an instruction. State v. Andrew, 76 Mo. 103. (5) It was error for the court to refuse to allow the entire argument on defendant's behalf to be made after it was begun, before additional argument was made for the State. It was violative of Revised Statutes 1879, section 1908. (6) The cause should be reversed, because the jury were allowed by their custodians to separate, and to stand and sit about the court room in close proximity to witnesses and others interested in behalf of the State, to read newspapers and drink whisky furnished by the officers, without the advice of a physician or the court.

D. H. McIntyre, Attorney General, for the State.

The order pursued in the argument of counsel is in strict compliance with the provisions of the statute regulating the order of trial. R. S. 1879, § 1908. The order in which counsel shall address the jury in criminal trials is a matter resting in the discretion of the court trying the cause, and unless it appears to have been exercised wrongfully and so as to injure a party, the Supreme Court will not interfere. State v. Waltham, 48 Mo. 55; Proffatt on Jury Trial, § 249, p. 308; Weeks on Attorneys, § 111, p. 210. It was not error to adjourn court from Wednesday until Thursday to allow one of the jurors to visit his home, under the charge of a sworn officer, to see his child, which was thought to be dying, the other jurors remaining in charge of another sworn officer at the place of trial. Crockett v. State, 52 Wis. 211; State v. Cucuel, 31 N. J. L. 249; State v. O'Brien, 7 R. I. 336. It has been repeatedly held that the momentary separation of a juror from his fellows, though not in the presence of a sworn officer, will not vitiate the verdict where no facts exist which raise a suspicion that he may have been tampered with. State v. Bell, 70 Mo. 633, and cases cited; State v. Conway, 23 Minn. 291; State v. Wart, 51 Ia. 587; McCarter v. Comm., 11 Leigh (Va.) 633; State v. Turner, 25 La. An. 573. Even a longer separation will not vitiate where it is shown as a fact that no abuse took place. State v. Cucuel, supra; State v. Harris, 12 Nev. 414; Westmoreland v. State, 45 Ga. 282. Nor is it necessary that the jury should always be kept together in a body in the same room. The law is complied with if they are, as a matter of fact, kept in the presence of each other and not allowed to come in contact with strangers. The officer need not be present iu the room with them, but should see that they are not tampered with. Comm. v. Shields, 2 Bush (Ky.) 81. The fact that some of the jurors read newspapers containing a part of the evidence given on the trial, and read such evidence, even, is no cause for a new trial. State v. Cucuel, supra. In this case no part of the evidence was read. U. S. v. Reid, 12 How. 361. It is also urged, as a ground for a new trial, that the jurors, during their deliberations, had and drank intoxicating liquors. It is shown by the affidavit of the deputy sheriff that they had but little whisky; that not enough was drunk to affect any one of them, and that it was not furnished by improper parties. It has been uniformly held in this State that moderate use of intoxicating drinks by a jury, when not coming from an improper source, will not be grounds of new trial. State v. Baber, 74 Mo. 292, and cases cited; State v. Cucuel, supra; Westmoreland v. State, supra. There was no evidence upon which to base an instruction for murder in the second degree.

HENRY, J.

At the September adjourned term of the Pike circuit court, 1883, the defendant was indicted for the murder of Owen Utterback, and a trial of the cause at the March term, 1884, of said court, resulted in his conviction of murder in the first degree, and from the judgment on said verdict he has prosecuted his appeal. The points relied upon for a reversal of the judgment are numerous, but we do not deem it necessary to notice any of them except the following: 1st, That the court erred, in not instructing the jury as to the law of murder in the second degree. 2nd, That the jury were allowed by the officer in charge of them to separate after the trial commenced; and 3rd, Alleged error is based upon the order of argument to the jury, allowed by the court.

The latter point will be first noticed.

After the evidence was closed and instructions given to the jury, an attorney for the prosecution made the opening argument to the jury, at the conclusion of which defendant's counsel insisted that when they commenced their argument to the jury they should be permitted to consume the entire time allowed them, three and a half hours, without interruption, having arranged that each of three counsel for defendant should address the jury. The court refused this demand. The statute declares that:

“Unless the case be submitted without argument, the counsel for the prosecution shall make the opening argument, the counsel for the defendant shall follow, and the counsel for the prosecution shall close the argument.” R. S., § 1908. The substance of the provision is, that the State shall have the right to open and close the argument, and, in this case, an attorney for the State opened the argument and was followed by one of defendant's counsel, and he by an attorney for the State, and this order was observed, until the conclusion of the argument by the prosecuting attorney. We see no objection to this practice, and do not think it in conflict with the section above quoted.

With respect to the separation of the jury complained of, the facts are that after the State had introduced her evidence in chief, and while Mr. Clark, one of defendant's counsel, was stating his case to the jury, the court postponed further proceeding in the cause, and permitted one of the jurors to go home, a distance of eighteen miles in the country, to see his sick child, reported to him as being in a dying condition. He was accompanied by and returned next morning with the sheriff. Again, on the afternoon of Wednesday, and while said cause stood adjourned until the next day, and after the evidence on the part of the State had been introduced, nine of said jurors were in the court room and three others were at the hotel, neither in the custody of nor attended by any bailiff, or other officer of the court. That after these nine left the court house, one of them, Oscar Cooper, came back into the court room unattended by an officer of the court, and, getting a newspaper, left the room. On the same afternoon, the jury came through the public room of the hotel, on the way to their room, and one of them, E. K. Smith, instead of going with the others to their room, took a seat near Henry Henderson, one of the State's witnesses, and held a conversation with him lasting two or three minutes.

Section 1909, Revised Statutes, provides, that: “With the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment, or recess of the court during the trial, in all cases of felony, except in capital cases; and in misdemeanors, the court may permit such separation of the jury of its own motion.” In a capital case, therefore, the court cannot permit the jury to separate, even with the consent of the prosecuting attorney and the accused. The court in this case did not permit it, except in the instance of the juror whose child was sick, but the sheriff did, and the reasons for forbidding the court from allowing a separation of the jury, in a capital case, apply with equal force to such separation of the jury permitted by the sheriff, to whose custody they are committed, with an injunction of law to keep them together. No intentional wrong is imputed to the sheriff, or his bailiffs, but from the inadvertence or misconception...