State v. Craft

Decision Date12 November 1901
Citation65 S.W. 280,164 Mo. 631
PartiesTHE STATE v. CRAFT, Appellant
CourtMissouri Supreme Court

Appeal from Cole Circuit Court. -- Hon. Jas. E. Hazell, Judge.

Affirmed.

F. E Luckett and Robt. W. Morrow for appellant.

(1) The indictment in this case is bad, because the indictment does not show that it was found by a grand jury, "duly impaneled, charged and sworn" by a court competent to try the case, nor does it show that it was returned into the circuit court of Cole county, nor does it allege any venue or jurisdiction in the caption. (2) The court should have granted defendant a continuance. It was a reasonable request. Defendant was indicted at the March term and forced to trial at the following July term, in the face of the fact that his counsel had not sufficient time to prepare his defense. The charge was a serious one and counsel should have been given reasonable time to prepare his defense, especially in view of the fact that the interest of the State would not have suffered thereby. While it is true, that the granting of continuances rests largely in the discretion of the trial court, yet, where this discretion is abused by the trial court, this court will reverse and remand the cause. State v. Hillenschiet, 61 Mo. 302; State v Whitlow, 68 Mo. 91; State v. Anderson, 96 Mo 241. (3) The defendant had a right to a public trial by an impartial jury of the county. This constitutional right was denied him. Of the fifty-five jurors who were examined touching their qualifications to sit on the case, forty-eight resided in Jefferson township and Jefferson City, in the immediate neighborhood and vicinity in which deceased was born and raised, and in which the tragedy occurred. Of the forty from which the trial jury was selected, twenty-nine resided in Jefferson township and Jefferson City. One of the jurors on his voir dire examination stated that he had formed an opinion; one other stated that he had talked about the case with his family physician, who was a witness for the State. Though defendant challenged these two jurors for cause, the court overruled his challenge. Thus was defendant forced to select the trial jury from a partial and prejudicial panel. Constitution, art. 2, sec. 22. (4) It was error to permit the guard to have defendant handcuffed in the courtroom during the preliminary stages of the trial and while in consultation with his counsel. The prisoner had a right, while on trial for his life, to be unfettered in the courtroom at any and all stages of the trial. State v. Kring, 64 Mo. 591. (5) The evidence must correspond and be responsive to the allegations in the indictment. The indictment did not charge that defendant was an escaped convict, and evidence that he was, was error and at variance with the indictment. 1 Greenleaf on Ev., secs. 50, 51, 52; Bank v. Murdock, 62 Mo. 70; State v. Jackson, 95 Mo. 649, and cases cited; State v. Worrell, 25 Mo. 205. (6) The record evidence that defendant had been convicted of robbery was wholly inadmissible. It is well settled that evidence of one crime can not be offered against a defendant on trial for a separate and distinct offense. This testimony was wholly incompetent and highly prejudicial to defendant. State v. Young, 119 Mo. 495; State v. Parker, 96 Mo. 382; State v. Martin, 74 Mo. 547; State v. Tabor, 95 Mo. 585; State v. Jackson, 95 Mo. 623; Wharton Crim. Ev., sec. 29, et seq. (7) The court should have instructed the jury on manslaughter. The defendant was entitled to this instruction upon his own testimony. A defendant has a right to have the question of his guilt or innocence passed upon by the jury on the facts as testified to by himself. State v. Brown, 104 Mo. 365; State v. Banks, 73 Mo. 592; State v. Postlow, 90 Mo. 608; State v. Palmer, 88 Mo. 568; State v. Young, 99 Mo. 666; State v. Croom, 85 Ga. 718; Com. v. Mockobee, 78 Ky. 380. (8) The defendant testified that he shot the deceased in necessary self-defense, and the court committed palpable error in refusing to give an instruction on self-defense. A defendant in a criminal case is entitled to an instruction on self-defense, although his testimony is the only evidence in support of it. State v. Fredericks, 136 Mo. 51; Munday v. Com., 81 Ky. 233. It is a well-founded principle in criminal law that the doctrine contended for by the defendant should be put in the instructions to the jury. State v. Holmes, 17 Mo. 381; State v. Anderson, 86 Mo. 309; State v. Banks, 73 Mo. 592; State v. Tate, 12 Mo.App. 327. It is error to refuse a correct instruction as to the law relating to homicide in necessary self-defense, where there is any evidence to support such defense. State v. Sneed, 91 Mo. 552; State v. Rose, 12 Mo.App. 567; Gibson v. State, 89 Ala. 121; People v. Adams, 85 Cal. 231; Steinmeyer v. People, 95 Ill. 383; Hinch v. State, 25 Ga. 699; McConnell v. State, 22 Tex.App. 354; Butler v. State, 33 Tex. Crim. Rep. 232; Baker v. People, 40 Mich. 411; Potter v. State, 85 Tenn. 88. (9) Instruction 7 assumes that the defendant was aware and had notice that the object and intention of Henry Spieker was to arrest him, which is disputed by the evidence, and was a matter for the consideration of the jury. This instruction was extremely prejudicial to the defendant, and states, in effect, that it is unnecessary for an officer or private person in making an arrest, to notify the one arrested of his purpose which is contrary to the statute and to all law upon the subject of arrest. Secs. 2540, 2541, R. S. 1899; State v. Bryant, 65 N.C. 327; Brooks v. Com., 61 Pa. St. 352; Yates v. The People, 32 N.Y. 509. There must be an intention, understood by the one arrested, to accomplish the arrest. 2 Am. and Eng. Ency. of Law (2 Ed.), p. 834; Jones v. Jones, 13 Ired. (N. C.) 448; Journey v. Sharpe, 4 Jones (N. C.) 165; Rex v. Ricketts, Campbell's Reps. 68. Every person has a right to resist an unlawful arrest or an arrest unlawfully violent and dangerous, both when he is arrested and after he is in custody. State v. Underwood, 75 Mo. 230; Seam v. State, 4 So. Rep. 521; Wright v. Com. (Ky.), 9 Cr. Law Mag. 331; Nobbs v. State, 26 Ala. 31; Dyson v. State, 14 Tex.App. 454; James v. State, 44 Tex. 314.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) While it might have been well for the indictment to have stated on its face the particular court in which it was found, yet this is a matter of no great importance in view of the provisions of the statute of jeofails, section 2535, Revised Statutes 1899. State v. McDaniels, 94 Mo 301; State v. Edmiston, 64 Mo. 398; State v. Henson, 81 Mo. 384. It will be observed that the record in this case shows the indictment to have been found in the circuit court of Cole county, and with the record so stating, no prejudicial error has been worked against the rights of the defendant. While it is well to do so, it is not essential to state the name of the court in the caption. State v. Daniels, 66 Mo. 193; State v. Blakely, 83 Mo. 359; State v. Freeman, 21 Mo. 482; State v. Kirk, 6 Mo. 496; State v. McDaniels, 8 Mo. 283. (2) At the time the indictment was found, defendant assured the court that he would employ his own counsel, and, therefore, did not ask, and there was no necessity for the court to appoint, counsel for him. One full term of court had elapsed, and while it might be true that Mr. Luckett had been employed in the case but a short time, yet such is not sufficient to justify a continuance when the defendant was given ample time to make such employment; especially is such true when the affidavit discloses no good and sufficient reason why such employment was not obtained at an earlier date. The application does not rest upon grounds of absent witnesses, but relies simply upon the fact that Mr. Luckett had been employed but a short time. This fact, however, is denied, as is shown by the affidavits of various persons. The right to a continuance is a matter purely discretionary with the court, and so long as the court does not abuse this discretion, the appellate courts will not interfere. It must clearly appear from the record that the discretion lodged with the trial court has been abused to the prejudice of the defendant before the appellate court will reverse the cause upon that ground. State v. Reimey, 137 Mo. 102; State v. Banks, 118 Mo. 117; State v. Parker, 106 Mo. 217; State v. Fox, 79 Mo. 108; State v. DeWitt, 152 Mo. 76; State v. Webster, 152 Mo. 87. There is no intendment in law favoring an application for a continuance. State v. Howell, 117 Mo. 307. All intendments are taken against statements contained in the application. State v. Pagill, 92 Mo. 300. (3) An examination of the record will disclose that there is nothing to show the truthfulness of the allegations contained in the motion to quash the panel. The averments in the motion do not prove themselves, and as the matter was presented to the court, even though it be conceded that the grounds therein stated would justify appellant's contention, yet we must accord the trial court full credit in performing its duty, and conclude that, after a full and complete hearing upon the subject, it found the facts therein alleged to be untrue. In other words, conceding defendant's motion and the averments therein made to be true, there is no sufficient showing in the record to justify the trial court in sustaining it; therefore, not sufficient reason as shall justify this court in reversing the cause upon that point. (4) Simply because a juror has read newspaper articles concerning the commission of a crime, which connect the accused with the crime, will not disqualify him as a juryman. State v. Walton, 74 Mo. 270; State v. Brown, 71 Mo. 454; State v. Barton, 71...

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