State v. Gonce

• Decision Date: 31 October 1885
• Parties: THE STATE v. GONCE, Appellant.
• Court: Missouri Supreme Court

87 Mo. 627

THE STATE

v.GONCE, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Greene Circuit Court.--HON. M. G. MCGREGOR, Judge.

AFFIRMED.

Smith & Krauthoff for appellant.

(1) The lower court should have granted a new trial because one of the jurors had prejudged the case. State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309; State v. Taylor, 64 Mo. 358; Sellers v. People, 3 Scam. 412; Presberry v. Com., 3 Dana, 203; Busic v. State, 19 Ohio St. 198; U. S. v. Fries, 3 Dal. 515. (2) The accused must be present during the entire trial, and on account of his absence in this case the judgment should be reversed. State v. Jones, 61 Mo. 233; State v. Able, 65 Mo. 37; State v. Buckner, 25 Mo. 168. (3) It was proper for the defendant to be asked as to his motives and apprehensions when he shot the deceased. State v. Banks, 73 Mo. 592; Vansickle v. Brown, 68 Mo. 634; Keenanis v. People, 60 N. Y. 228. (4) The affidavit of defendant for a continuance should not have been read in evidence, as no proper foundation was laid for its introduction, and it was not proper evidence in rebuttal. (5) The eleventh instruction, given by the court of its own motion, was wrong. State v. Vansant, 80 Mo. 67; State v. Stein, 79 Mo. 330. (6) The instructions, asked by defendant and refused by the court, should have been given. (7) The record fails to show that Judge McGregor was properly authorized to try the case.

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

(1) Judge McGregor properly acquired jurisdiction of the cause by virtue of the request of the judge of the Greene circuit court. R. S., sec. 1106. (2) It was for the jury to say, on the facts in evidence, whether defendant had reasonable cause to apprehend danger to his life or limb. White v. Maxey, 64 Mo. 560; Nichols v. Winfrey, 79 Mo. 544. (3) The instructions given by the court embodied all the law applicable to the case, under the evidence. (4) A judgment will not be disturbed on account of the momentary absence of defendant, unless it appears affirmatively from the record that the defendant was prejudiced. State v. Grate, 68 Mo. 22; State v. Bell, 70 Mo. 633; State v. Lewis, 80 Mo. 110. (5) The juror, Bryant, was not disqualified. State v. Hosmer, 85 Mo. 553. Besides, the decision of the trial judge on the matter should not be disturbed. State v. Cook, 84 Mo. 40; State v. Bank, 80 Mo. 626.

NORTON, J.

Defendant was indicted at the August term, 1884, of the Christian county circuit court for murder in the first degree, for killing one Charles Kyser.

On defendant's application a change of venue was awarded to the Greene county circuit court, and at the May term, 1885, of said court, the cause was tried and defendant convicted of murder in the second degree, and his punishment assessed at thirty years imprisonment in the penitentiary, from which he has appealed to this court. One of the grounds stated in the motion for new trial is, that J. D. Bryant, one of the jurors, had prejudged the case, which fact was not known by defendant till after the verdict was returned. In support of this ground, the affidavit of one Simpson was read, stating that a few days before the beginning of the term of court at which defendant was tried, he had a conversation with Bryant, in which affiant said to Bryant: “I guess Gonce's trial will come up this term of court,” to which Bryant replied: “Well, I guess he ought to be hung, anyhow.” The affidavit of one Porter was also read, stating that he and Bryant had been on the police force in Springfield together at one time, and that soon after the killing of Kyser, when the newspaper accounts relating to it were being published, he heard Bryant say that Gonce was guilty of murder and ought to be hung for it.

The affidavit of Bryant was also read, stating that he had no recollection of having heard of the killing of Kyser by Gonce prior to the time of his being summoned as a juror; that he had never, at any time prior to this trial of the cause, said to Simpson that Gonce ought to be hung, anyhow, and that he had never made a statement to Simpson, or to any other person, of similar import; that he had at no time or place formed or expressed any opinion as to the guilt or innocence of Gonce prior to the trial; that he had never at any time said to Porter that Gonce was guilty of murder and ought to hang for it; that he and Porter were on the police force of the city of Springfield till about the first of April, 1884, and that since that time, to the best of his knowledge, he never had any conversation with said Porter.

It is settled law in this state that it is a good ground for a new trial when a juror on his voir dire examination has stated that he has neither formed nor expressed an opinion as to the guilt or innocence of the accused, and after verdict it comes to the knowledge of the accused that such juror had prejudged the case, and that fact is made to appear to the satisfaction of the court. In such cases the question as to whether the juror had prejudged the case is one of fact to be determined by the trial judge, as any other question of fact on sworn statements. In the present case the question was submitted, on defendant's side, on the affidavit of Simpson imputing language to Bryant used a few days before the trial, and the affidavit of Porter imputing language to Bryant used on a different occasion, when the newspaper accounts of the homicide were being published, which, if believed by the trial court, might have justified the granting of a new trial. But the juror, Bryant, on his affidavit, positively and unequivocally denies that he used the language imputed to him either by Simpson or Porter. The trial court held upon this evidence that the fact alleged in the motion that Bryant had prejudged the case had not been established, and we cannot see how it could have ruled otherwise, inasmuch as Bryant's affidavit, that he did not make the statement in a few days before the term of court at which the case was tried, which Simpson imputed to him in his affidavit, was entitled to as much credit as the affidavit of Simpson, alleging that he did make it, and inasmuch as his affidavit denying the use of the language imputed to him by Porter was entitled to as much credit as the affidavit of Porter imputing it. The onus of establishing the fact alleged rested on defendant, and it was for him to show it by a preponderance of evidence. This, we think, he has not done.

We have been cited to the cases of State v. Burnside, 37 Mo. 343; State v. Wyatt, 50 Mo. 309; State v. Taylor, 64 Mo. 359, as justifying a reversal of the judgment in this case. In the case first cited, three witnesses testified to hearing the same conversation in which the impeaching and disqualifying language of the juror was used. Their evidence was simply opposed by the affidavit of the juror and the statement of another person, at work in the shop where the conversation occurred, that he did not hear such remarks made. The affidavit of three witnesses in that case stood opposed to the affidavit of one. In the case before us it is the affidavit of one opposed by the affidavit of another, and nothing more. In the case of State v. Wyatt, 50 Mo. 309, the juror admitted the remark attributed to him in the affidavits filed. In the case of State v. Taylor, the juror did not positively deny having made the remarks attributed to him, but virtually admitted them. The present one is more analogous to the case of State v. Cook, where, upon the affidavit of two persons, one of them stating that soon after the homicide the juror expressed a willingness to go up and hang the defendant, and the other stating that the juror had expressed, in his hearing, an intention of condemning the defendant, should he be called upon the jury. This juror filed a counter affidavit denying the truth of the affidavits, and the prosecuting attorney testified that after the jury had been sworn, Lancaster asked him why he had accepted Forrester as a juror; that Forrester had told him that if he was called to serve upon the jury he could not hang the defendant. In passing on the question it is said: “Upon the evidence, the court found that the charge against the juror was not sustained. The finding, being supported by the evidence, which it was the duty of the trial judge to consider and weigh, cannot be...