State v. Duffy

• Decision Date: 09 July 1894
• Citation: 27 S.W. 358,124 Mo. 1
• Parties: The State v. Duffy, Appellant
• Court: Missouri Supreme Court

27 S.W. 358

124 Mo. 1

The State v. Duffy, Appellant

Supreme Court of Missouri, Second Division

July 9, 1894

Appeal from St. Louis Criminal Court. -- Hon. H. L. Edmunds, Judge.

Affirmed.

McDonald & Howe for appellant.

(1) The court erred in refusing to sustain defendant's challenges to jurors Lenard Meyer and Luther S. Taylor. R. S. 1889, sec 4197; State v. Bryant, 93 Mo. 273. (2) The court erred in allowing several prisoners charged with various offenses to plead guilty in the presence of the jury called to try this appellant, against appellant's objection at the time. (3) The court erred in allowing evidence to go to the jury in relation to Murphy's connection with the case, as he had been previously tried and convicted. (4) The court erred in allowing the circuit attorney to introduce as evidence the appellant's shirt which had been forcibly taken from him. (5) The court erred in allowing the circuit attorney in the re-examination of the prosecutrix and other witnesses to refer to the former trial of the codefendant Murphy and to make use of improper remarks in the presence of the jury while so doing. (6) The court erred in allowing the circuit attorney, in his closing argument to the jury, to make use of improper remarks and arguments. 16 Am. and Eng Encyclopedia of Law, 524; State v. Hamilton, 55 Mo 520; Gibson v. Zeibig, 24 Mo.App. 66; State v. Pagels, 92 Mo.App. 300; State v. Graves, 95 Mo. 511; State v. Ulrich, 19 S.W. 656; State v. Young, 99 Mo. 666. (7) The indictment is fatally defective. Kelley's Criminal Practice [2 Ed.], sec. 190; State v. Hong Tong, 22 S.W. 381; State v. Clayton, 100 Mo. 516; State v. Herrell, 97 Mo. 105; Bishop's Statutory Crimes, 387, 439; Bishop, Directions and Forms, 179, note.

R. F. Walker, Attorney General, and C. O. Bishop for the state.

(1) There is nothing in the record sustaining the allegation in the motion for new trial that the court permitted "a number of prisoners charged with felonies to be brought up by the sheriff, and in the presence of the jury allowed them to plead guilty and receive penitentiary sentences, against the defendant's objection at the time." (2) The court did not err in examining witnesses during the trial developing testimony material to the state, and in a manner tending to prejudice defendant's case. The court has the right to interrogate witnesses. State v. Pagels, 92 Mo. 300. (3) The jurors challenged by the appellant were fully competent under the repeated rulings of this court. State v. Williamson, 106 Mo. 162, and cases cited. (4) The instructions correctly declared and fully covered all the law of the case, and were highly favorable to the appellant. (5) The testimony as to the conduct and acts of Murphy was competent, it being shown all the way through the case that he and Duffy were acting in concert all the time, and, moreover, they were certainly a part of the res gestoe. State v. Murphy, 118 Mo. 7. (6) The clothing of the prosecutrix, worn at the time of the alleged assault, was competent evidence against appellant. State v. Murphy, 118 Mo. 7. (7) There was no error in permitting Murphy to be recalled for further cross-examination in order to lay the foundation for impeachment, and it was also competent to introduce testimony contradicting his statements made on such recall. 1 Greenleaf on Evidence, sec. 447; State v. Jones, 64 Mo. 391. (8) As to the alleged improper remarks of prosecuting counsel, those made in the opening argument were legitimate, and, if not, were not excepted to. If there was any impropriety in those set out on page 243, they were corrected by the remarks of the court. The other remarks were fully justified by the evidence. State v. Emory, 79 Mo. 461.

OPINION

Burgess, J.

At the October term, 1892, of the St. Louis criminal court defendant and one Patrick Murphy were jointly indicted for rape. The assault was committed upon one Ellen Rose, a female over fifty years of age. The indictment as to Duffy was subsequently quashed, and at the March term, 1893, of said court, he was separately reindicted.

On May 25, 1893, a trial was had which resulted in defendant's conviction, fixing his punishment, at imprisonment in the penitentiary for a term of twenty years. The case is in this court on his appeal.

On the arrival of the transcript the cause was set for hearing on the tenth day of April, 1894, and argued and submitted on that day. Subsequently, however, on suggestion of the attorney general, that, since the trial of the cause in the criminal court of St. Louis, the indictment had been changed, mutilated and forged in this, that the words "unlawfully and feloniously" had been erased therefrom, by which it was rendered void and of no force or effect, which suggestions and motion were supported by affidavit, said submission was set aside on the day of 1894.

On June 12, 1894, the following order and rule were made in said cause by this court on the Hon. Henry L. Edmunds, Judge of the St. Louis criminal court:

"Now at this day, it being suggested to the court by the attorney general, who appears on behalf of the state, that the original indictment on file in the St. Louis criminal court has been fraudulently altered since this cause was tried in said court and prior to the time the record herein was certified to this court, in this, that the words 'unlawfully and feloniously' have been erased therefrom.

"And, whereas the suggestion thus made by the attorney general is duly supported by affidavits, now, therefore, it is ordered that it may be determined whether in deed and in truth said indictment has thus been fraudulently altered and spoliated as aforesaid; it is considered and ordered by this court, that a rule go to the Hon. Henry L. Edmunds, judge as aforesaid, commanding that he do careful examination make of the said indictment in connection with the evidence and affidavits filed herein, and in connection with such other evidence as he may deem necessary to take, and of his own knowledge, he do determine whether said indictment has been fraudulently altered as has been suggested; and if he, the said judge, do find in manner as aforesaid, that said indictment has been altered, that he do proceed at once upon the affidavits and evidence as aforesaid, and on his own knowledge to restore said indictment to what it was at the time the same was signed and returned by the grand jury into court, and certify the same to this court.

"And that he, the said judge, do on or before the sixteenth day of June, 1894, certify under his hand and seal to this court, how he has discharged this rule and order, together with all evidence taken by him in said cause, together with said indictment which he shall determine as aforesaid, to be the true indictment herein.

"And it is further ordered that a copy hereof be duly certified to the Hon. Henry L. Edmunds by the clerk of this court."

On the sixteenth day of June, 1894, the Hon. Henry L. Edmunds reported that in obedience to the rule and order of this court he had examined into such matters as he might deem necessary in order to determine whether said indictment had been fraudulently altered since the same was returned by the grand jury and having found that it had been so changed and falsified, he corrected the same and forwarded the corrected indictment to this court together with his report.

This report was approved by this court by an entry of record and the corrected indictment ordered to be filed and stand as the true indictment. The cause was then set down for reargument on the thirtieth day of June, 1894, and counsel duly notified, when it was again submitted on the original briefs filed herein.

The prosecuting witness, Ellen Rose, was fifty-eight years of age; had been married thirty-three years; had borne six children; lived in Illinois, and she and her husband were accustomed to go to St. Louis to sell their produce and do their trading. They always crossed the Mississippi river on the ferryboat at "Cahokia Ferry." Ellen Rose and her husband went to St. Louis on November 1, 1892, and after having sold out their produce which they took with them to market made some purchases and started back home. They were directed to go up to the bridge and cross over, but were persuaded by one Schweigeler, who kept a lodging house on the levee, between Sidney and Anna streets, near the ferry landing, to put up with him over night; so they arranged to stay there, put up their team, intending to cross the river early in the morning. Mrs. Rose had an invalid relative living on Papin street, some distance up town, and after supper she concluded to visit this relative; so, leaving her husband at Schweigeler's, she walked up to Broadway, thence north to Chouteau avenue (a mile or more from the lodging house). Here she was overtaken by a sudden shower, and took refuge in what is called the "French Market," on Broadway and Chouteau avenue. She abandoned her intended visit, and after the shower was over started to walk back to Schweigeler's. She passed a grocery store where she had had some dealings, and stopped there for some time, until about or after 11 o'clock; then resumed her walk down Broadway to Anna street, down which she turned towards the river. On Anna street she met police officer Anton, whom she accosted and told where she wanted to go, and inquired if she was on the right road. He directed her how to find...