State v. Crawford

• Decision Date: 18 November 1889
• Citation: 99 Mo. 74,12 S.W. 354
• Parties: STATE v. CRAWFORD.
• Court: Missouri Supreme Court

12 S.W. 354

99 Mo. 74

STATE v. CRAWFORD.

Supreme Court of Missouri.

November 18, 1889.

INDICTMENT — DATE — CRIMINAL LAW — EVIDENCE — SEPARATION OF JURORS.

1. Under Rev. St. Mo. § 1821, which provides that no indictment shall be deemed invalid, nor shall the trial judgment or other proceedings thereon be stayed, arrested, or in any manner affected, for stating the time imperfectly, or for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or day that never happened, an indictment is not fatally defective in that it charges the crime to have been committed on a day subsequent to that on which the trial occurred.

2. On trial for arson, evidence that defendant and his co-indictee were at the store which was burned, after business hours, and some time before the burning; that defendant was seen prowling about the place, taking note of localities and objects; that, in conversation with different persons, he made covert threats, "verbal intimations," and "declarations of intention," so called, — is admissible, as tending to connect defendant with the burning.

3. Evidence tending to show that a stranger to the trial had made threats against the person and property of the owner of the burned house is irrelevant.

4. A motion for a new trial, on the ground of newly-discovered evidence, is insufficient, where it is not supported by affidavit, as required by law of court, and where it is not shown what diligence was used in procuring the evidence, nor that it is material.

5. Rev. St. Mo. § 1909, provides that, with the consent of the prosecuting attorney and the defendant, the court may permit the jury to separate at any adjournment or recess during trial, in all cases of felony except capital cases, under proper instructions as to their conduct. Section 1910 provides that at the conclusion of the argument the jury "may retire under the charge of an officer, who, in case of a felony, shall be sworn to keep them together, * * * and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed." Section 1966 provides that a new trial may be granted "when the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case." Held, that a person who took out a juror during the trial, and returned with him through a saloon, but who was not the officer sworn to take charge of the jury, will be presumed to have been a subordinate officer of the sheriff, qualified to take such juror in charge, in the absence of evidence to the contrary; and a new trial will be refused, as section 1910 will not be construed to mean that the sheriff has no right to give a juror in charge to another sworn officer.

Appeal from circuit court, Dallas county; W. I. WALLACE, Judge.

Indictment of J. A. Crawford for arson. Rev. St. Mo. § 1821, provides that "no indictment or information shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected, * * * for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment or information, or on an impossible day, or on a day that never happened." Verdict of guilty, and defendant appeals.

Amos S. Smith and John S. Haynes, for appellant. The Attorney General, for the State.

SHERWOOD, J.

The defendant was charged by the indictment with the crime of arson of the store-house of S. H. Burris, and his trial resulted in his conviction of that offense; his punishment being assessed at imprisonment in the penitentiary for the term of five years. From the judgment and sentence he appeals to this court, assigning frequent errors.

1. The charge that the indictment is fatally defective, for that it charges the crime to have been committed on a day subsequent to that on which the trial occurred, is answered by section 1821, Rev. St. 1879. The case of State v. Burnett, 81 Mo. 119, is an adjudication upon this section of the statute directly in point, and directly opposed to the contention of the defendant's counsel.

2. There was no error committed in admitting testimony that defendant and his co-indictee, Reeser, were at the store-house of Burris, after business hours, some time before the burning occurred. Evidence that the defendant was seen lurking about the scene of the alleged crime, taking notice of localities and objects; that, besides his proximity of vicinity to the locus of the crime, he had conversations with different persons, in which he made, in regard to the crime, covert, indirect, or vague threats, more properly designated as "verbal intimations" and as "declarations of intention," — was all competent evidence, and it is the constant practice to admit such evidence in courts of justice. Treating of the subject of such "verbal intimations," an eminent text-writer says: "The verbal expressions under consideration are found to assume different shapes, according as they are the offspring of cold-blooded craft, or more violent and hasty malignity. In the former case, they are sometimes managed with great art. They are thrown out voluntarily and purposely, it is true, but in so obscure and intangible a form as to amount to nothing more than mere general intimations. They are, in fact, parts of a system of preparation, but of the most preliminary kind, intended to explore the way for more direct action in future. The criminal ventures no further than to hint at or obscurely allude to the act he has in contemplation. He proceeds warily, throwing out feelers, as it were, in advance, partly to sound the temper of those among whom he trusts himself, and partly to give an air of probability to the approaching event, and yet to disconnect himself from all apparent agency in producing it. Thus a man, meditating the murder of his wife, was heard to say: `My wife is a queer body. I should not be at all surprised if she were to take herself off some fine morning.' Here, even the event itself is not directly mentioned. Departure or disappearance is all that is spoken of, and even that attributed to a cause which, to a stranger, might appear abundantly sufficient to account for it, — oddness or peculiarity of habits or character. In other cases, the...