State v. Core

• Citation: 70 Mo. 491
• Parties: THE STATE v. CORE, Appellant.
• Decision Date: 31 October 1879
• Court: United States State Supreme Court of Missouri

70 Mo. 491

THE STATE

v.CORE, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Laclede Circuit Court.--HON. R. W. FYAN, Judge.

AFFIRMED.

Joseph Wisby for appellant.

J. L. Smith Attorney-General, for the State.

NORTON, J.

At the February term, 1879, of the circuit court of Laclede county, an indictment was found and returned by the grand jury into said court, charging defendant with killing George E. King. The indictment contained three counts, in the first of which, defendant is charged with murder in the second degree, and in the second and third counts of which he is charged with murder in the first degree, in killing said King. At the August term, 1879, the cause was tried, and the jury returned into court the following as their verdict: “We, the jury, find the defendant guilty as charged in the indictment.” Upon this verdict the court entered its judgment sentencing defendant to the punishment of death by hanging. Although it is shown by the bill of exceptions that exceptions were taken to almost everything done during the progress of the trial, but two of them are of sufficient importance to demand the attention of defendant's counsel in his brief, and they are, first, that the court erred in accepting on the panel of forty jurors persons who, by reason of having formed opinions, were not qualified to serve; second, that the verdict of the jury does not authorize the judgment rendered upon it.

1. COMPETENCY OF JURORS WHO HAVE FORMED AN OPINION.

As to the first point it may be observed that twenty of the forty persons summoned as jurors being examined on their voir dire stated that they had formed and expressed opinions, but that said opinions were based upon what they had heard from others, and that if they had talked to any person who was a witness in the case, they did not remember it; that they thought they could decide the case according to the law and evidence; that they had not conversed with witnesses, nor did they know the facts; that their opinions were not of such a character as would affect them in rendering a verdict, but that they would be governed by the law and evidence; that it would require evidence to remove said impressions made on their minds. The jurors thus answering, were accepted by the court as qualified, over the objection of defendant, and this action is claimed to be erroneous, and violative of section 13, Wag. Stat., 1103, which provides “that it shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried; but if it appears that such opinion is founded only on rumor, and not such as to prejudice or bias the mind of the juror, he may be sworn.”

Under said section the precise question now presented to us was considered by this court in the case of Baldwin v. The State, 12 Mo. 224, and it was held that the trial court committed no error in accepting a juror as qualified, who, upon an examination touching his qualifications, made statements substantially the same as those made by the jurors in the present case and copied above. So in the case of State v. Davis, 29 Mo. 391, the question again arose, and in the disposition of it, it was observed: “The jurors were examined upon their voir dire, and stated that they had formed an opinion, but it was upon rumor, and was not such as to bias or prejudice their minds. This has been the law in this State, and such jurors have invariably been held competent. * * Such is the growing aversion to serving on juries that unless this rule is adhered to, it will be impossible to obtain competent jurors.” The same principle was declared in the case of State v. Rose, 32 Mo. 346.

2. PRACTICE, CRIMinal: sentence upon general verdict.

The second point relied upon by defendant is, that the indictment contains three counts, in one of which defendant is charged with murder in the second degree in killing deceased, and in the other two with murder in the first degree; and that the general verdict of “guilty as charged in the indictment,” returned by the jury, did not justify the court in rendering judgment sentencing defendant to the punishment prescribed for murder in the first degree. Under our statutes there are two degrees of the crime of murder, and we think it is evident that the different counts in the indictment relate to one and the same transaction, to-wit: the killing of King, the deceased, and we are of opinion that the action of the court in sentencing defendant upon the general verdict of guilty returned by the jury on said indictment to the punishment affixed to the highest degree of the crime charged therein, was rightful. All the authorities we have examined sustain this view, and we have not been cited to any which oppose it.

It is laid down in § 3048, 2 Whart. Crim. Law (5 Ed.)...