State v. Connors

• Decision Date: 07 February 1911
• Citation: 135 S.W. 444,233 Mo. 348
• Parties: STATE v. CONNORS.
• Court: Missouri Supreme Court

135 S.W. 444

233 Mo. 348

STATE v. CONNORS.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

Rehearing Denied March 14, 1911.

1. GRAND JURY (§ 8)—SELECTION OF JURORS —PRESUMPTION.

Where the usual order is made to summon a grand jury and the usual return is made by the sheriff showing that he had summoned 12 men, it will be presumed that the intermediate steps provided by law, such as drawing from the wheel by the jury commissioner, etc., were properly taken.

2. GRAND JURY (§ 3)—NUMBER OF JURORS.

Const. art. 2, § 28, provides that "hereafter a grand jury shall consist of 12 men, any nine of whom concurring may find an indictment or a true bill." Rev. St. 1909, § 5090, provides that "no indictment can be found without the concurrence of at least nine grand jurors." Held, that 12 men must be impaneled and sworn to constitute a legal grand jury, but, if one of them be absent at the hearing, the other 11 may hear evidence and deliberate thereon.

3. WITNESSES (§ 40) — COMPETENCY — DISCRETION OF COURT.

The question whether a boy 8½ years old is a competent witness must be left largely to the discretion of the trial judge.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

John Connors was convicted of perjury, and appeals. Affirmed.

Henry M. Walsh, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

FERRISS, J.

On January 17, 1909, Officer Hutton, of the St. Louis police force, was shot and wounded while attempting to quell a disturbance in the West End Club, in that city. The defendant, who was present, was called before the grand jury as a witness to the shooting. This indictment is founded upon his testimony before that body, where he denied seeing the shot fired, and denied recollection of the events, testifying that he was drunk on that occasion. He was tried and convicted of perjury March 3, 1910, in the St. Louis circuit court. He appeals to this court to reverse the judgment, and urges in his brief the following alleged errors: (1) There was no properly or legally summoned grand jury. (2) Eleven members, instead of 12, constituted the grand jury at the time the defendant was brought before them to testify as to the things upon which the indictment is bottomed. (3) The witness George Brazier was not competent to testify, neither as to age nor as to his mental capacity, not being aware of the sanctity of an oath. (4) There was no affirmative evidence to go to the jury on the question of the ability of the defendant to recall what had occurred at the time of the shooting. (5) The instructions of the court were erroneous and misleading, and misdirected the jury as to the law. (6) The statements made by counsel for the state, both in the opening and closing arguments, were outside the record and prejudicial to defendant.

We will take these points up in the above order.

First. The usual and proper order was made by the court to summon a grand jury. The usual and proper return was made by the sheriff, showing that he had summoned 12 good and lawful men. It will be presumed that the intermediate steps provided by law —drawing from the wheel by the jury commissioner, etc.—were properly taken.

Second. Twelve men were duly accepted and sworn as grand jurors, and entered upon the discharge of their duties. The defendant was called before this body of jurors, and examined as a witness concerning a case then under investigation. The charge of perjury, upon which he was convicted, was based upon his testimony before such grand jury. It developed during the trial of defendant that on the day he was examined before the grand jury one of their number was not present, and that the testimony of defendant was given before 11 members only of the grand jury. It does not appear that the absent juror had been discharged from the panel. Defendant contends that 11 men could not constitute a grand jury for the purpose of hearing and deliberation. His position is that, although 9 grand jurors may concur in finding an indictment, not less than 12 can act as a jury in hearing testimony and deliberating thereon. He urges that, although the law permits nine men to decide, it still requires the presence of the other three at the hearing in order to get the benefit of their suggestions, opinions, and arguments. The question seems to be one of first impression in this state. Const. art. 2, § 28, provides: ...