State v. Connor
| Decision Date | 05 June 1925 |
| Docket Number | No. 26040.,26040. |
| Parties | STATE v. CONNOR. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.
Roy Connor was convicted of murder in the second degree, and he appeals. Reversed and remanded.
Hunter & Chamier, of Moberly, for appellant.
Robert W. Otto, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.
This is the second appeal in this case. The information charges the defendant with murder in the first degree for the killing of Earl Williamson October 18, 1920. On the first trial he was convicted of second degree murder and sentenced to the penitentiary for 25 years. This conviction was reversed, and the cause remanded. See 252 S. W. 713. The defense is insanity. It will not be necessary to restate the evidence at the second trial, as it is substantially the same as at the first. He was convicted of second degree murder and sentenced to 15 years in the penitentiary.
1. The Attorney General contends the motion for new trial was not filed within four days after verdict, as required by the statute, and, for that reason, only the record proper can be considered, citing State v. O'Neil (Mo. Sup.) 246 S. W. 908.. He concedes the verdict was returned on Saturday, and that the motion was filed on the following Thursday. He calls attention to the `fourth clause of section 7058, R. S. 1919, "the time within which an act is to be done shall be computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded." He cites Stutz v. Cameron, 254 Mo. 340, 162 S. W. 221. A reading of that case shows it has no application. Section 1456, R. S. 1919, requires all motions for new trials to be made within four days after the trial, if the term shall so long continue; and, if not, then before the end of the term. This has uniformly been construed to mean four judicial or secular days, Sunday being excluded. State v. Harris, 121 Mo. 445, 26 S. W. 558, and cases cited; Mueller v. Nat. Hay & Milling Co. (Mo. App. K. C.) 258 S. W. 741, 742 and cases cited. The motion for new trial was filed within four days after the trial.
2. The court properly instructed on murder in the first and second degrees, on insanity on the presumption of innocence and the burden of proof, and that the jury are the judges of the weight and credibility of the evidence. These are in the usual form, and need not be set out. Some of the instructions asked by the defendant were covered by those given for the state, and therefore were properly refused. Defendant's instruction 20 is to the effect that any juror has the right and it is his duty to refuse to agree to a verdict of guilty unless from the whole evidence he is satisfied beyond a reasonable doubt of the defendant's guilt.
Instruction 21 is to the effect that it is not sufficient to warrant a conviction that the greater weight of the evidence supports the allegations of the information, but, before they can convict the defendant; he must be proved to be guilty so clearly and conclusively that there is no reasonable theory upon which he can be innocent when all the evidence is considered together. Number 24, that if the whole evidence leaves their minds in such condition that they are neither morally certain of defendant's innocence or guilt, then a reasonable doubt exists and they should acquit. These or similar instructions are usually given, and might properly have been given.
The defendant asked the court to instruct that in determining whether or not the defendant shot the deceased in hot blood they should take into consideration whether or not he was an epileptic, his nervous and physical derangements, his susceptibility to excitement, and his temperament. We think the...
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State v. Ferguson
...the jury went to two shows and one dance while the trial was in progress. State v. Hayes, 323 Mo. 578, 19 S.W.2d 883 and State v. Connor (Mo.), 274 S.W. 28 were separation cases. In her motion for a new trial the appellant assigns as error misconduct on the part of the jury in their deliber......
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State v. Hermann
...in determining whether or not he was disqualified. In such cases we often have held that a new trial should be granted. See State v. Connor, Mo.Sup., 274 S.W. 28, 30; State v. Sherrill, Mo.Sup., 278 S.W. 992, 994; State v. Hutchinson, Mo.App., 289 S.W. 969, 970; State v. Taylor, 64 Mo. 358;......