State v. Connell

• Citation: 49 Mo. 282
• Parties: THE STATE OF MISSOURI, Defendant in Error, v. THOMAS CONNELL, Plaintiff in Error.
• Decision Date: 31 January 1872
• Court: United States State Supreme Court of Missouri

49 Mo. 282

THE STATE OF MISSOURI, Defendant in Error,

v.THOMAS CONNELL, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1872.

Error to Cole Circuit Court.

H. Flanagan & G. T. White, and H. C. Ewing & A. M. Lay, for plaintiff in error.

I. The grand jury was not lawfully summoned. It met at an adjourned term, but without any order from the court directed to the sheriff and entered on the minutes of the court. (Wagn. Stat. 1083, § 13; State v. Barnes, 20 Mo. 413.) Without such steps the indictment is a nullity. This fact appears on the face of the record, and may be taken advantage of at any time. (Chase v. State, 1 Spen., N. Y., 218; Porter v. State, 23 Miss. 77-8; Stokes v. State, 24 Miss. 621; State v. Brown, 5 Eng., Ark., 78; Doyle v. State, 17 Ohio, 222; McGuire v. People, 1 Park. Crim. Rep. 48; McClosky v. People, 5 Park Crim. Rep. 308; People v. McKay, 18 Johns. 212; State v. Lightbody, 38 Me. 200; State v. Harden, 2 Rich., S. C., 533; Miller v. State, 33 Miss. 356; McMellen v. State, 8 Sm. & M. 587.) Defendant could not give jurisdiction by consent or failure to object. (State v. Mansfield, 41 Mo. 470.)

The provision of our statute (Wagn. Stat. 1081, §§ 2, 3), with the construction sought to be applied to it, would work not only a hardship in many cases, but would be exceedingly harsh and inhuman in the case at bar. When this body of men who preferred the bill against the defendant convened, he was a convict in the Missouri penitentiary, knew nothing of them or their proceedings, and could not be present to object.

II. The sentence of death pronounced against the defendant by the Circuit Court of Boone county having been commuted by the governor, the warden was required by law to confine him in the penitentiary for life. (Wagn. Stat. 785, § 26.) There was no authority in law for taking him out of the custody of the warden for a moment, except to testify as a witness in certain cases, or for the purpose of inquiring into the legality of his confinement. And he certainly did not appear voluntarily. The Circuit Court under the law could acquire no jurisdiction over the person of the defendant, and as a matter of fact never did acquire any.

III. Admitting that he might be lawfully tried, the second sentence could take effect only at the expiration of the first, or when he was pardoned by the executive. The judgment of the Circuit Court of Boone county, as commuted or changed by the order of the governor, requires the defendant to remain in the custody of the warden for life. This judgment and the executive order are still in full force. Can another court of no higher jurisdiction direct its sheriff to take him out of the custody of the warden, where under the law he rightly belongs? Can the warden, under the law and under the order of the governor, surrender him to the sheriff for any such purpose? We submit that in the absence of any statute authorizing it, it cannot be done. ( Ex parteBrunding, 47 Mo. 255; 1 Bish. Crim. Law, § 731; Bish. Crim. Pr., § 878.) The defendant had the right to be heard by himself and counsel. (Const. Mo., art. I, § 18.)

IV. In criminal cases it is well settled that this court will reverse the judgment and grant a new trial if the verdict is against the evidence. (State v. Mansfield, 41 Mo. 470; State v. Marshall, 47 Mo. 378; State v. Bird, 1 Mo. 585; State v. Packwood, 26 Mo. 340.)

A. J. Baker, Attorney-General, for defendant in error.

I. The right to try criminals for offenses committed while in prison under sentence, is clearly recognized by the statute. (Wagn. Stat. 389, §§ 14, 15; Ex parte Brunding, 41 Mo. 255.)

II. No objection was made to the manner of summoning the jury in the court below, and it is now too late to raise that point here. (State v. Bleekley, 18 Mo. 428; State v. Marshall, 36 Mo. 400; State v. Samuels, 3 Mo. 68; State v. Welch, 33 Mo. 34.) Nor is this point raised by a motion in arrest or for new trial, and this must be done before this court will pass upon it. (State v. Marshall, supra.)

III. The court will not disturb the judgment where, from the evidence, the finding might have been either way, as the surrounding circumstances incline. (McKnight v. Wells, 1 Mo. 14; Kizer v. Wilkes, 5 Mo. 519; Steel v. McCutchens, id. 522; Stewart v. Small, id. 525; Church v. Fagin, 43 Mo. 123.)

J. W. Moore, for defendant in error, in addition to points urged by the attorney-general, contended that any objection to the irregularity in the impaneling or array of the grand jury must be made before the defendant enters his plea to the merits on the indictment, that it was too late to object after verdict, and cited Whart. Crim. Law, §§ 468, 471-2, and cases cited; People v. Griffin, 2 Barb. 427; State v. Borroum, 25 Miss. 203; Vanderhook v. State, 12 Texas, 252; 3 Wend. 314; 11 Ala. 57; State v. Rand, 33 N. H. 16. Counsel claimed that under some authorities any objections, to be available to the defendant in the matter of summoning and impaneling the grand jury, must be made before the jury is sworn. (Wagn. Stat. 1081, § 3; State v. Bleekley, 18 Mo. 428; State v. Marshall, 36 Mo. 400; State v. Welch, 33 Mo. 33.)

F. N. Judson, for defendant in error.

The convict forfeits his civil rights and privileges only as a part of his punishment. The forfeiture of his privileges is not an exemption from his responsibilities. (Wagn. Stat. 51, § 989.) If the punishment of the new offense is of less degree, as in case of larceny or assault by a murderer, the lesser would necessarily be merged in the greater.

The plea of appellant is analogous to the common-law plea of autrefoit attaint. (4 Shars. Blackst. 336.) Attainder utterly annihilated all civil rights. Civil death was complete, yet the plea never gave exemption from punishment except where the new punishment was of less degree, and so would be unavailing. Thus, an attainder for a felony was no bar to an indictment for treason. (17 Metc., Mass., 800.)

WAGNER, Judge, delivered the opinion of the court.

The record shows that the plaintiff in error is a convict in the State penitentiary; that he committed a willful murder in Boone county, for which he was tried, condemned, and sentenced to be hung; and that upon certain representations his punishment was commuted by the governor to imprisonment for life in the State penitentiary. After he was imprisoned in the penitentiary he killed Lafayette Burns, a fellow-convict, for which killing he was indicted in the Cole County Circuit Court, and upon his trial was found guilty of murder in the first degree, and he has brought his case to this court by writ of error.

The main points relied on for a reversal are the following: first, that the grand jury was illegally impaneled; second, that the Circuit Court had no jurisdiction of the case; and third, that the verdict is against the weight of evidence.

The indictment was found at an adjourned term of the Circuit Court, and the objection taken is that it does not appear that the court ever made an order directing a grand jury to be summoned. The record entry describes the beginning of the court, the time and place where held, and then continues thus: “Among other proceedings had were the following, to-wit: Now at this day come the following named persons as a special grand jury,” etc., naming a full and regular panel. Then follows an entry of the returning of the grand jury into court with the indictment. The objection now made was not brought to the attention of the court below, and the point is raised here for the first time.

In criminal cases, such errors as appear upon the face of the record, or such as may be taken advantage of by a motion in arrest or by writ of error, will be noticed here as a matter of course; but as to exceptions taken in the progress of the trial, and as to motions for a new trial and in arrest, which can become a part of the record only by bill of exceptions, the same rules are applicable alike in criminal and civil cases. (State v. Marshall, 36 Mo. 400.) The statute provides that if any offense be committed or discovered during the sitting of any court having jurisdiction thereof, after the grand jury attending such court shall be discharged, such court may, in its discretion, by an order to be entered on its minutes, direct the sheriff to summon another grand jury. (Wagn. Stat. 1083, § 13.) Under this section a grand jury may be summoned at an adjourned term, as it is a mere continuation of the regular term. (State v. Barnes, 20 Mo. 413.)

The only defect that exists in the record is its failure to show that any order was made by the court for summoning a special grand jury. The Circuit Court is a court possessing general and original criminal jurisdiction, and where presumptions are indulged they are to be in favor of its proceedings. It must be borne in mind that our practice in reference to summoning and impaneling grand juries is regulated exclusively by the statute. The practice that existed by the common law, and that has obtained in some of the States where the common-law rules have been adopted, furnish no precedent to guide us. In order that verdicts should not be set aside and new trials granted for frivolous and unsubstantial reasons, in the matter of the selecting of a grand jury, the Legislature interposed, and declared that challenges should be made in certain specified cases only.

The statute provides that “any person held to answer a criminal charge may object to the competency of any one summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecutor, and has been summoned or bound in a recognizance as such; and if such objection be established, the person so challenged shall be set aside.” (Wagn. Stat. 1081, § 2.) The third section of the same article declares that no challenge to the array of grand jurors, or to any person summoned as a grand juror,...