State v. Ferguson

• Decision Date: 22 November 1939
• Docket Number: No. 35647.,35647.
• Citation: 133 S.W.2d 1023
• Court: Missouri Supreme Court
• Parties: STATE v. FERGUSON.

133 S.W.2d 1023

STATE v. FERGUSON.

No. 35647.

Supreme Court of Missouri, Division No. 2.

November 22, 1939.

Appeal from Circuit Court, Shannon County; Will H. D. Green, Judge.

R. L. Ferguson was convicted of manslaughter, and he appeals.

Affirmed.

L. N. Searcy, of Eminence, and Charles Seibold and James T. Blair, Jr., both of Jefferson City, for appellant.

Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for respondent.

COOLEY, Commissioner.

Appellant, defendant below, was convicted of manslaughter for the killing of one Otho Tripp, and has appealed. The killing is admitted. The defense was that it was done in self-defense. Under the evidence the state made a submissible case, which appellant in effect concedes. In his brief here he specifically states that he urges but one point, viz., alleged separation and misconduct of the jury. In this situation a detailed statement of the facts relative to the homicide is unnecessary.

The trial was begun and the state's evidence introduced on September 14th, 1936. The court thereupon adjourned until the next morning, when the trial was resumed. It was concluded and the case submitted to the jury on September 15th. The verdict was returned the morning of the 16th. On the nights of September 14th and 15th the jurors were kept in charge of a duly sworn officer, a deputy sheriff named Chilton, and were quartered in two rooms on the second or upstairs floor of the hotel at Eminence, in which city the trial was being held. Six jurors slept in each room. There was a communicating door between those rooms, which was kept open. A door from each of those rooms opened upon a corridor or hall running the length of the building. There were two such corridors, one running north and south and the other east and west, intersecting at right angles. We gather from the affidavits and evidence offered on the motion for new trial that the jurors' rooms were on the north and south corridor, at or near the northeast corner of the building and next to the street. Somewhere near or at the southwest corner of the building on that floor there was a bathroom and toiletroom, a door opening into the bathroom from, as we understand the record, the east and west corridor and a door from the bathroom into the toiletroom, but no door from the toiletroom directly into the corridor.

There were several windows looking out upon the street in the rooms occupied by the jurors and also one or more windows in the bath and toiletrooms. The windows in the jurors' rooms were estimated by affiants and witnesses variously at from twelve to twenty feet above the street level. Probably a fair estimate based on all the evidence would place them about fifteen or sixteen feet above the level of the street and sidewalk. There was no porch or balcony along or about those windows on the second floor, and it does not appear that there was any means of access to those rooms from the outside. A similar situation existed as to the window or windows in the bath and toiletrooms, except that there was some evidence that the ground on that side was somewhat higher so that the windows would not be quite so high above the ground. However, there was evidence which the court may well have believed that the bath and toiletroom windows were about the same height above the ground as those in the jurors' rooms. The only means of access into the bath and toiletrooms was the door above mentioned from the corridor into the bathroom. The foregoing facts are taken from affidavits filed and evidence heard by the court on the motion for new trial and are substantially undisputed, — at least they are established by the weight of the evidence.

Coming now to the direct contention as to alleged separation and misconduct of the jury. By an affidavit of defendant and by testimony given by him on the motion for new trial it appears that on the night of September 14th — before the trial had been concluded and the cause submitted to the jury for deliberation, — he and his attorney watched from an automobile the upstairs windows of the rooms in which the jurors were quartered; that he saw several of the jurors playing cards and "having a hilarious time" (a mere conclusion); that he saw persons who were enemies of his and unfriendly to him "walking in and around the hotel, in the streets and alleys surrounding same and on the vacant lot back of it." [Note, he does not say he saw anyone approach or attempt to approach the rooms in which the jurors were, or attempt to communicate with them nor that they or any of them communicated or attempted to communicate with anyone].

Mr. Chilton said that on the night of the 14th he passed through the rooms in which the jurors were two or three times to look out of the windows because of some disturbance in the street (not connected with this case) which, by its noise, had attracted his attention and which was serious enough that, had it not been for leaving the jury, he would have gone to call the sheriff. There is no evidence that on any of these occasions when Mr. Chilton went into or passed through the rooms occupied by the jurors he had any conversation with any of them. He distinctly said there was no mention of the case on trial.

There was also mention in defendant's affidavit and in his testimony of the conduct of a lawyer, whom we shall call Mr. K, who had originally been employed to assist in the prosecution. Of this we shall speak later. We wish first to dispose of the other complaints concerning the night of September 14th. We have outlined in a general way, but we think sufficiently, what is claimed to have occurred that night. That, as we have said, was before the trial was concluded. Whatever happened that night (other than Mr. K's actions) was then known to defendant and his counsel. No complaint or request for redress was made to the court. Defendant does not in his motion for new trial, or in his affidavit in support thereof or in his testimony offer any explanation or excuse for not having called the court's attention to the happenings on the night of September 14th. Therefore he is now in no position to complain thereof. This question was fully considered in State v. Trainer, 336 Mo. 620, 80 S.W.2d 131, to which the reader is referred.

Now, in regard to Mr. K. Defendant's affidavit and that of his counsel show that they did not know of his alleged misconduct until after the return of the verdict. It appears that Mr. K had been employed by relatives of the deceased to assist in the prosecution; that he appeared in court on the morning of the 14th, remaining only a few minutes and not participating in the trial; that for some reason not clearly disclosed and not here material, he was excused from the case and took no further part therein. However, it further appears that he did not at once leave Eminence but stayed over that night and that night was at the hotel; that that night, — the night of the 14th, — he attempted two or three times to go to the rooms where the jurors...