State v. Gilmore
| Decision Date | 21 May 1888 |
| Citation | 8 S.W. 359,95 Mo. 554 |
| Parties | The State v. Gilmore, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. J. C. Normile, Judge.
Affirmed.
A. W Alexander and D. Castleman Webb for appellant.
B. G Boone, Attorney General, for the state.
(1) The trial court committed no error in directing the sheriff to fill the panel by calling other jurors of the regular venire in the place of the absentees. It appears from the bill of exceptions that the two jurors thus called were in every way qualified to sit in the cause -- defendant did not challenge them, either peremptorily or for cause. (2) No objection was raised to either of the new jurors; defendant expressly waived his right to the forty-eight hours, and the panel was filled before he was required to make his peremptory challenges, State v. McCarron, 51 Mo. 27; State v. Klinger, 46 Mo. 224; State v. Waters, 62 Mo 196. (3) The testimony of the witness Oldfield, regarding defendant's sworn statement before the coroner, was competent. Any acknowledgment or admission of the accused in regard to the matter was clearly competent for the state to prove, unless a confession obtained by influences of hope or fear. This statement of the prisoner was in the nature of a judicial confession, made by him voluntarily, after having been duly apprised of his rights, under oath, before an officer authorized to administer oaths, and who was then making a statutory investigation of the cause of Stanton's violent death. R. S., 1879, secs. 5136, 5141, 5142, 5144. Nor was the accused in the least prejudiced by the admission of the testimony, but it was rather to his advantage; his whole statement being proven, and all the circumstances extenuating the homicide, as claimed by him, thus presented before the jury for their consideration. State v. Hayes, 78 Mo. 307, 319. (4) The instructions fully covered the law of the case; were in the form so often approved by this court, and correctly declared the principle regarding an unintended result. State v. Jump, 90 Mo. 171; State v. Montgomery, 91 Mo. 51.
For shooting and killing Miles Stanton, in the city of St. Louis, with a pistol, on the twelfth of January, 1886, the defendant was indicted for murder in the first degree, at the following March term of the St. Louis criminal court. After several continuances of the cause, defendant was put upon trial at the May term, 1886. A panel of forty-seven qualified jurors was obtained from the regular venire, and appellant was allowed the statutory forty-eight hours in which to make his challenges. At the close of that period the state and defendant had prepared their challenges, but they were not submitted to the court. Upon a call of the panel of forty-seven, two of the jurors failed to respond. Neither of these jurors was on the challenge lists. The court thereupon issued attachments for the absentees, and the returns thereon showed that one of the jurors had left the city, and the other had met with an accident which confined him to his bed. The court directed the sheriff to call two jurors from the regular venire in place of the absent ones, who were then examined upon their voir dire, and found to be qualified. This was done over the objection of defendant. The court then asked defendant if he desired an additional forty-eight hours in which to make challenges, but he waived his statutory privilege, and thereupon the state and defendant submitted their challenges to the court, and the trial panel was selected, containing the two jurors who had been called in place of the absentees, and who had not been challenged by either side, defendant saving an exception to the action of the court.
The trial resulted in a conviction of defendant of murder in the second degree, the punishment being fixed at imprisonment in the penitentiary for the term of fifty years. After unsuccessful motions for new trial and in arrest, sentence was pronounced on July 2, 1887; stay of execution was had until July 25, 1887, at which time defendant was committed to the penitentiary, where he now is.
The testimony on the part of the state tended to show the following: Shortly after midnight of January 11, 1886, Gilmore, one Mooney, and several others met on the street and together went to the saloon of one Leahy, on Sixth and Clark avenue, where they continued drinking and singing songs until about three o'clock in the morning. About one o'clock, Stanton (the deceased) came into the saloon with a party of friends. Introductions followed and the two parties drank and sang together. Gilmore and Stanton had never met before. In the course of the entertainment, Gilmore asked Mooney to pay him some money which Mooney owed him, the sum being about five dollars. Mooney said he had no money but would pay to-morrow. Gilmore replied that Mooney's to-morrows were slow in coming and suggested that he should borrow the money from the barkeeper, appealing to the barkeeper at the same time to advance the money to Mooney. The barkeeper expressed his readiness to let Mooney have two dollars, or to pay Gilmore two dollars for Mooney, but Mooney said that "Gilmore was full enough now" and could wait until morning, and told the barkeeper to give it to Gilmore in the morning. There was a good deal of talk between the two about it, and then Gilmore left the saloon for about fifteen minutes. When he returned, he renewed his demand on Mooney for the money, and on Mooney's refusal to pay, exclaimed, at the same time drawing a seven-barreled revolver from his pocket which he began discharging at once. One bullet struck the mirror behind the bar, three struck Mooney, in the wrist, thigh, and ankle, and another struck Stanton, who was standing at the counter with his back to Gilmore, lodging in his heart and killing him almost instantly. One of the party disarmed Gilmore, but not until he had emptied his revolver, and then he ran out of the saloon and was arrested about three blocks away by two officers, who took him back to the saloon, where they found Stanton dead. Gilmore remarked to the officers that he was sorry it was not Mooney he had killed instead of Stanton. There was also testimony that between two and three o'clock Gilmore entered a saloon, a block away, and obtained his revolver from the barkeeper there, with whom he had left it previously, saying that he was going out to "Kerry Patch" that night and feared some one might attempt to "slug" him.
On the part of the state in chief, one Oldfield was sworn as a witness, who testified that he was a stenographer employed by the coroner to take notes of the inquests; that he took short-hand notes of the testimony at the inquest of Stanton; that Gilmore was present there; that the coroner informed Gilmore of his right to make a statement or not regarding the killing, as he chose, and that his statement might be under oath or not, as he chose; that Gilmore then and there made a voluntary statement under oath, to the effect that he had had a dispute with Mooney about the money; that he did not intend to shoot Stanton, who was a perfect stranger to him, and that he did not intend to kill Mooney, either, although he might have said he did while he was drunk that night. This testimony of Oldfield's was admitted by the court over the objection of defendant. Defendant testified in his own behalf and stated that during the dispute with Mooney about the money, Mooney said, "You son-of-a-bitch, I won't pay you anything!" and snapped his fingers in Gilmore's face, and then made a movement down as though he was about to draw a weapon, when he (Gilmore) drew his revolver and commenced firing, but without intending to kill Mooney or any one else; that he had gotten the pistol between nine and ten o'clock that evening before he met Mooney, and that, at the time he was seen to leave the saloon during the dispute, he had only gone out to the water-closet.
The court instructed the jury as to murder in the first degree, murder in the second degree, manslaughter in the fourth degree, and self-defence, declaring that the principles of law in each applied to the killing of Stanton as if Mooney had been the victim. The instruction as to manslaughter was based upon the unintentional killing of Stanton.
I. There was no error in the action of the court in regard to filling the panel by calling other jurors in the place of the absentees; and the two who were thus called were unexceptionable, and were not challenged either peremptorily or for cause, and those absent were not on either of the challenge lists; and besides, the court offered to give the defendant an additional forty-eight hours in which to make his challenges; but this offer was declined. This action of the court placed the defendant in just as good a situation as he would have been had the two jurors failed to absent themselves; and this was all he could justly claim. The privilege of having forty-eight hours in which a prisoner is to make his challenges is a mere statutory one, and which he may waive. State v. Klinger, 46 Mo. 224; State v. Waters, 62 Mo. 196. The panel being filled in a proper manner, the two jurors first called, being unavoidably absent, additional time being granted to defendant to make further challenges, the case stood precisely as if the two absentees had died pending the time challenges were being made.
II. So far as concerns the testimony of Oldfield, the ground of the objection to its admission is not preserved, and the presumption is, therefore, to be indulged that the objection taken to its admissibility was...
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