State v. Crocket

• Decision Date: 15 November 1886
• Citation: 1 S.W. 753,90 Mo. 37
• Parties: The State v. Smith, Appellant
• Court: Missouri Supreme Court

1 S.W. 753

90 Mo. 37

The State v. Smith, Appellant

Supreme Court of Missouri

November 15, 1886

Appeal from Audrain Circuit Court. -- Hon. Elijah Robinson, Judge.

Reversed.

George Robertson and Orlando Hitt for appellant.

(1) The indictment should charge a complete offence against Ann Crockett as principal, and before starting to allege an offence against the accessories should conclude with the phrase "against the peace and dignity of the state." No venue and time is laid in the indictment against the accessories. The language in the indictment "on the twenty-eighth day of September, 1882, A. D., at the county of Audrain," etc., refers to the date of the arson as alleged against the principal, Ann Crockett, and not to the acts of the accessories. (2) The coroner is the proper person to appoint when the sheriff is for any reason not qualified to act. R. S., 1879, secs. 3893-4-5. (3) James, the private person appointed to act as sheriff, should have been sworn before summoning the jury and taking upon himself the duties of sheriff. R. S., 1879, sec. 2781. James should have been sworn in accordance with section 6, article 14, of the constitution. (4) The jury was selected from a small piece of territory and from a particular neighborhood of the county. They should have been selected from the body of the county generally. Bill of Rights, sec. 22; 2 Shars. Black., 350 *351; Proffatt on Jury Trial, sec. 80, p. 117. (5) The defendant should have been in court during the whole of the trial. The trial begins with the plea. 2 Shars. Black., 349 350, *350, *351, et seq; Sweeden v. State, 19 Ark 209; Sneed v. State, 5 Ark. 431; Cole v. State, 5 Eng. 518; Osborn v. State, 24 Ark. 629; Brown v. State, 24 Ark. 620; Hopt v. People, 18 Cent. Law Jour. 269; Sylvester v. State, 15 Cent. Law Jour., 36; R. S., 1879, sec. 1891. (6) It was prejudicial to the rights of the defendant to permit the regular sheriff to serve the process of the court after he had been removed on account of his bias and prejudice against the defendant. (7) The church records were the proper and best evidence as to the acts of the church. (8) The court should have instructed the jury to acquit the defendant at the close of the state's evidence. State v. Watson, 31 Mo. 361; Wharton's Crim. Evid. [8 Ed.] sec. 441. (9) The deed offered in evidence by the defendant from the trustees of the Second Baptist Church of Mexico, to the American Home Mission Society, proves that the title to the burned house was not in the said church as alleged in the indictment. Ownership must be proven as alleged. 2 East P. C., 1035; 28 Ala. 71; 20 Cal. 76; 9 Iowa 436. (10) The evidence of D. D. Woodward was not admissible in any aspect. 1 Greenleaf's Evid., sec. 99.

B. G. Boone, Attorney General, for the state.

(1) The indictment is sufficient. It does conclude "against the peace and dignity of the state." The venue is definitely laid. R. S., sec. 1821; State v. Simon, 50 Mo. 370. (2) Timely objections were not made by the defendant to the special sheriff or elisor, James, and he cannot now complain. Thomp. & Mer. on Juries, 81-2; Rex v. Edmunds, 4 B. & A. 471; Co. Litt., 158a. (3) It is not a ground for challenge to the array that the party who selected the panel had no title to the office of sheriff. Murfree on Sheriffs, sec. 393. Statutes regulating the selecting of jurors have repeatedly been held by this court to be directory. Unless it appears, and it does not in this case, that defendant was prejudiced by reason of the failure of the trial court to comply with the statutory provision, this court will not interfere. State v. Pitts, 58 Mo. 556; State v. Breen, 59 Mo. 415; State v. Knight, 61 Mo. 373; State v. Ward, 74 Mo. 256. The defendant was under bond, not in actual custody, during his trial, and unless it appears affirmatively that he was denied the right or privilege of being present when the panel was examined on their voir dire this court will not interfere. The record shows defendant's presence when he was arraigned and made his plea and throughout the trial. If absent when the trial panel was being selected, and it does not affirmatively appear that he was denied the right and privilege of being present, the presumption follows that he was voluntarily absent, and if so he cannot be heard to complain, especially in the absence of any claim of prejudice by reason of such absence. State v. Grate, 68 Mo. 22; State v. Brown, 63 Mo. 438; State v. Bell, 70 Mo. 633; State v. Lewis, 78 Mo. 256. The record does not show that the defendant was absent "during the trial." The trial commences with the plea. The plea is made upon arraignment, whereupon the trial jury is sworn and the evidence proceeded with. State v. Montgomery, 63 Mo. 299. (4) Defendant should have made timely objection to sheriff Woodward serving subpoenas for witnesses if there had been any ground for the complaint in this behalf. It has been repeatedly held by this court that unless a prosecutor misstates the law or the evidence in his statement or argument to the jury, or takes some undue advantage of the accused, his conduct will not be reviewed. State v. Hopper, 71 Mo. 433; State v. Stark, 72 Mo. 37; State v. Hoffman, 78 Mo. 256. (5) While it is necessary to prove the ownership of the property burned as laid in the indictment, the fee need not be proved to be in such owner, but it is sufficient if the alleged owner have such possession as gives a special property in the premises; this the Second Baptist Church of Mexico had in the building burned. State v. Moore, 61 Mo. 276; 2 Bish. Cr. Pro., sec. 36; 2 Johns. 105; State v. Lyon, 12 Conn. 487; State v. Toole, 29 Conn. 342. (6) The verdict is sufficiently clear and responsive to the issues to support the judgment. State v. Ostrander, 30 Mo. 13; State ex rel. v. Rombauer, 44 Mo. 590. The errors in the verdict are merely clerical and will not be regarded. Holmes v. Braidwood, 82 Mo. 610. Calling the jury by the clerk when they come in with their verdict is merely formal, and to enable defendant to be heard on account of a failure to do this, he must show that he was prejudiced.

Ray, J Henry, C. J., not sitting.

OPINION

Ray, J.

Defendant Ann Crocket was indicted at the June term, 1883, of the Audrain circuit court for arson, and the other defendants, Smith, Redman and Glover, were jointly indicted with her for inciting, etc., her to commit the offence. At said term the prosecuting attorney entered a nolle as to the defendant Ann Crocket. A severance was taken and a separate trial of the defendant Smith at the October term resulted in the failure of the jury to agree.

At said first trial defendant made affidavit against the sheriff and his deputy, charging them with prejudice against him, and the court thereupon appointed one Dobyns to summon the special venire -- and said Dobyns acted in that behalf at the first trial of the cause. At the January term (when the second trial occurred and this conviction was obtained) said Dobyns declined to further act, and the court thereupon (against the objection of defendant) appointed one Joseph James, who was not the coroner of the county, to act in this behalf. Defendant renewed his said objection to the appointment of said James and his authority to summon the jury, by filing his motion to quash the panel, upon said ground, among others, that the court having found the sheriff disqualified to act in summoning the jury, by reason of prejudice against defendant, the coroner of said county was the only officer designated by the statute to act in this behalf in the place of said sheriff. R. S., 1879, secs. 3893-4-5. This motion was overruled and this action of the court is assigned and urged here as error.

At common law the coroner was authorized to perform the duties devolved on the sheriff in summoning a jury, whenever the sheriff was incompetent to act, and in this event the process of the court was directed to the coroner instead of the sheriff. If it was suggested or made to appear that the coroner was also disqualified then the court appointed persons of its own nomination called elisors to act in that behalf. Said elisors were particular officers of the court, acting under its special authority. Section 3894, Revised Statutes, provides that "every coroner within the county for which he is elected or appointed shall serve and execute all writs and precepts and perform all other duties of the sheriff, when the sheriff shall be a party, or when it shall appear to the court out of which process shall issue, or to the clerk thereof in vacation, that the sheriff is interested in the suit, related to or prejudiced against any party thereto, or in any wise disqualified from acting." Section 3895 authorizes the coroner to perform the duties of the office of sheriff whenever the same shall be vacant by death or otherwise, until another sheriff shall be appointed and qualified. In the case at bar it was not made to appear, or even suggested, that the coroner of said county was under any disability to act in the matter of summoning the jury, and under this state of facts, the sheriff being thus disqualified and removed, the coroner was the proper officer both at common law, and under the statute, to act in that behalf. We have been referred to a class of cases holding, in effect, that the capacity of an officer, such as a sheriff duly commissioned and acting as such cannot be inquired into collaterally upon a motion to quash the venire, but these cases are, we think, not applicable.

The plain purport of the statute is to substitute the coroner for the sheriff in respect to the duties of such office, whenever the contingencies contemplated arise, and where the law thus devolves the performance of such duties upon a designated...