State v. Davis

• Decision Date: 31 October 1877
• Citation: 66 Mo. 684
• Parties: THE STATE v. DAVIS, Appellant.
• Court: Missouri Supreme Court

66 Mo. 684

THE STATE

v.DAVIS, Appellant.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Jackson Criminal Court--HON.HENRY P. WHITE, Judge.

B. L. Woodson and Rucker Bros. for appellant.

1.Defendant could not waive the legal number of jurors in the manner shown by the record.Berry v. State,10 Ga. 524;Terry v. Buffington,11 Ga. 337;King v. Woolf, 1 Chitty 401;State v. Mansfield,41 Mo. 470;State v. Klinger,46 Mo. 224;Brownlee v. Hewitt,1 Mo.AppealRep. 360.

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

1.The defendant consented to a panel of 24 men, and 9 challenges, and thereby waived his privilege of striking off the statutory number.Being for his benefit, he could waive the privilege, and cannot take advantage of his waiver after the verdict.It is not alleged nor proved that he was in any wise prejudiced thereby, and, if he were, the matter was not presented in time nor in the proper shape.State v. Marshall,36 Mo. 400;State v. Hays,23 Mo. 287;State v. Holme,54 Mo. 153;State v. Jackson,12 La. An. 679;State v. Vester,23 La. An. 620;State v. Axiom,23 La. An. 621;People v. Coffman,24 Cal. 230;Proffatt on Jury Trials, § 198.

SHERWOOD C. J.

Defendant was indicted for robbery in the first degree, convicted, and his punishment assessed at the lowest statutory limit.

I.When the defendant was arraigned, there were but 24 of the regular panel of jurors in the box; seeing this, the court ordered the marshal to summon six additional ones, whereupon the prosecuting attorney asked the attorneys of defendant to waive the bringing in and swearing of the six additional ones, which defendant's attorneys consented to do.Thereupon the prosecuting attorney struck off three men, and the defendant's attorneys nine men, and the remaining twelve were sworn as a jury.In indictments for the offense charged, the accused is entitled to a panel of 30 jurors.It is provided: There shall be summoned and returned in every criminal cause, a number of qualified jurors equal to the number of peremptory challenges, and twelve in addition; and no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained.(2 W. S., 1102, § 7.)

The minimum of punishment for robbery in the first degree, is ten years; (1 W. S., 456, § 23); and as “no limit to the duration of such imprisonment is declared, the defendant was entitled to twelve peremptory challenges, (2 Id., 1102, § 4), and the State to six, (Id., § 6).The court should have enforced the order for summoning six additional jurors, and promptly rebuked the prosecuting attorney when making his improper proposal to the opposing counsel.When one indicted for a felony appears for his trial, he comes into the court room bearing the stigma of an indictment, every eye is fixed on him with scrutinizing suspicion; he is decidedly below par, carries weight, and “is under a cloud.”Though technically free and presumptively innocent, the beneficent presumptions of the law avail him but little; morally he is in chains.He is, therefore, in no condition to object to scarcely anything which the prosecuting attorney may propose, without incurring the hazard of increasing the suspicion which already clusters around him, and thus fatally prejudicing his cause.The very term waiver imports a voluntary act, and an act cannot be thus denominated when performed under conditions of practical compulsion.If the accused fails to object to an improper proposal coming from the representative of the State, he thereby loses a right guaranteed to him by the law.If he objects, he thereby jeopards his right to an impartial trial by jury, guaranteed to him by the constitution.Under such circumstances, to hold the prisoner bound by an involuntary, so-called, and extorted consent, would be purely farcical, and the merest mockery of justice.We do not by the above remarks, intend to be understood as meaning that the accused may not voluntarily, and of his own head, waive any right, short of a constitutional one; but we do mean to assert that such waiver must be one in deed and in truth; in reality, not alone in name and appearance; not made as the result of what is in effect, an intimidatory suggestion of the prosecuting attorney.( Brownlee v. Hewitt,1 Mo. App. Rep. 360;Terry v. Buffington,11 Ga. 337.)In State v. Hays,(23 Mo. 287), there was a full panel upon which the right of peremptory challenges could be exercised.In the State v. Holme,(54 Mo. 153), the judgment was reversed, because of non-compliance with the statute requiring that the first...