State v. Grate

• Decision Date: 31 October 1878
• Parties: THE STATE v. WILLIAM GRATE, Plaintiff in Error.
• Court: Missouri Supreme Court

68 Mo. 22

THE STATE

v.WILLIAM GRATE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1878.

Error to Clark Circuit Court.--HON. JOHN C. ANDERSON, Judge.

Frank Hagerman and James Hagerman for plaintiff in error.

1. The failure of the record to show a presentment of the indictment in open court by the grand jury is a fatal defect. Constitution of Missouri (1865), art. 1, § 24; Wag. Stat., § 21, p. 1084; § 1, p. 1086; Gardner v. People, 20 Ill. 433; Rainey v. People, 3 Gil. (Ill.) 72; Brown v. State, 7 Humph. (Tenn.) 155; Chappel v. State, 8 Yerg. (Tenn.) 170; Hite v. State, 9 Yerg. 198; Commonwealth v. Cawood, 2 Va. cases 527; Green v. State, 19 Ark. 178; Cachute v. State, 50 Miss. 165; Laura v. State, 26 Miss. 176; Friar v. State, 3 How. 423; Goodwyn v. State, 4 Smed. & Mar. 535; Jenkins v. State, 30 Miss. 408; Pond v. State, 47 Miss. 39; State v. Cox, 6 Iredell, 440; State v. Glover, 3 Greene (Iowa) 249; Adams v. State, 11 Ind. 304; Jackson v. State, 21 Ind. 79; Hall v. State, 21 Ind. 268; Conner v. State, 18 Ind. 429; 19 Ind. 98; Springer v. State, 19 Ind. 180; The State v. Carson, 12 Mo. 407; The State v. Mertens, 14 Mo. 94; The State v. Clark, 18 Mo. 432; The State v. Freeman, 21 Mo. 481; The State v. Burgess, 24 Mo. 382. 2. The absence of the accused from the court during a portion of the trial must reverse the cause. The State v. Matthews, 20 Mo. 55; The State v. Buckner, 25 Mo. 168; The State v. Cross, 27 Mo. 332; The State v. Schoenwald, 31 Mo. 147; The State v. Braunschweig, 36 Mo. 397; The State v. Ott, 49 Mo. 326; The State v. Barnes, 59 Mo. 154; The State v. Jones, 61 Mo. 232; The State v. Barnett, 63 Mo. 300; The State v. Cheek 63 Mo. 364; The State v. Allen, 64 Mo. 67; The State v. Dooly, 64 Mo. 146; Meredeth v. People, 84 Ill. 480; Maurer v. People, 43 N. Y. 3; Brownlee v. Hewitt, 1 Mo. App. 367. 3. There was no arraignment. The record must show arraignment, as well as plea. The State v. Matthews, 20 Mo. 55; The State v. Saunders, 53 Mo. 234; The State v. Mont gomery, 63 Mo. 296; 2 Wag. Stat., 1095, §§ 2, 4, 5; 1 Bishop Crim. Proced., (2 Ed.) §§ 728, 733; State v. Lartigue, 6 La. Ann. 404; State v. Price, Ib. 691. 4. Upon the question of character the defendant should have been permitted to prove by his neighbors that his moral character or reputation as a peaceable citizen had never been questioned prior to the difficulty.

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

1. When the indictment is indorsed properly and comes into the hands of the clerk, the demands of the statute are satisfied. The State v. Clark, 18 Mo. 432; The State v. Couperhaven, 39 Mo. 430. 2. Greenleaf lays down the rule that “the examination must be confined to his general reputation. * * * The inquiry must be made as to his general reputation where he is best known. It is not enough that the impeaching witness professes merely to state what he has heard, ‘others say.’ He must be able to state what is generally said of the person, by those among whom he dwells, or with whom he is chiefly conversant, “for it is this only that constitutes his general reputation or character.”' Greenl. on Ev. § 461; State v. White, 35 Mo. 500; Warlick v. Peterson, 58 Mo. 408. 3. The section of our statute requiring a defendant to be present in person was enacted in order to give full force and effect to the constitutional provision, “that the accused shall meet the witnesses against him face to face,” and to give him an opportunity of polling the jury when they return their verdict. It was never intended that merely because the defendant stepped out of the room, and during his absence the prosecuting attorney made a portion of his argument, he should, after a verdict of guilty, be granted a new trial. The State v. Brown, 63 Mo. 439.

SHERWOOD, C. J.

Defendant, indicted for murder in the first degree, was, upon trial had, convicted of manslaughter in the second degree, and comes here alleging divers errors. Owing to the conclusion we have reached, after a careful examination of the record, we have deemed it unnecessary to give expression to our views in detail respecting many of those errors, since in the view a majority of the court have taken, the cause must be retried, and since, also, we regard the trial of the defendant as having been, for the most part, very fairly conducted, and the law, in the main, correctly administered. In one particular, however, to which we will presently advert, my associates think prejudicial error was committed.

1. RETURN OF INDICTMENT INTO COURT.

I. As to the preliminary objection urged against the indictment that it only bore the indorsement “A true bill, H. A. Stewart, foreman. Filed October 7th, 1875, D. N. Lapsley, clerk.” We have this to say: That a similar objection was decided adversely to the objector in The State v. Pitts, 58 Mo. 556. It would be strange indeed if the indictment should be rendered invalid by the failure of the clerk to make an entry respecting the presentation of the indictment by the grand jury in open court when the statute, 2 Wag. Stat., sec. 1, p. 1086, expressly forbids the clerk, where a felony is charged, from making any entry on the minutes or records of the court in reference to the indictment, unless the defendant is in custody or on recognizance. The fact that defendant was under bail in the same court, charged by indictment for the same offense, with murder in the second degree, does not alter or vary the statutory inhibition because the indictment under which defendant was tried charged Matthew Grate also with the murder, and it does not appear that he was either on bail or in custody.

The statute, 2 Wag. Stat., sec. 21, p. 1084, provides that, “indictments found and presentments made by a grand jury shall be presented by their foreman, in their presence, to the court, and shall be there filed and remain as records of such court.” It is out of the power of the clerk, by his remissness, to balk the action of the grand jury. The indictment became a record of the court when returned by the grand jury in accordance with the statutory provision above noted. This was so ruled in The State v. Clarke, 18 Mo. 432. In that case only the usual indorsement was made on the indictment by the foreman of the grand jury, but it was held that the indictment on its presentation by the grand jury became ipso facto a record of the court, and that the court should have ordered the clerk to indorse the time it was filed nunc pro tunc. There was no such difficulty to be obviated in the case at bar, because the clerk had indorsed upon the bill that it was “filed,” and this, in connection with the indorsement by the foreman, showed that it had been “returned” by the grand jury in open court. The State v. Clarke, supra. In Baker v. Henry, 63 Mo. 517, in respect to the report of an administratrix, it was remarked: “The mere indorsement by the clerk, on the paper, is not the sole constituent element of filing that paper; for in legal contemplation the presentation and delivery of the paper to the court or officer, is the filing which dates from its receipt by the clerk and lodgment in his office, although the clerk's indorsement is the highest legal evidence of the filing, and that indorsement being merely ministerial, is amendable at common law.” In that ruling we followed the authority of State v. Gowen, 7 Eng. (Ark.) 62, in regard to an indictment which the clerk had failed to indorse, “filed.” We have been thus particular respecting the point under discussion, because that point is brought to our attention again and again, at almost every term of the court. There was no error on this point committed by the court below.

2. ABSENCE OF PRISONER DURING TRIAL.

II. Nor do we think the court erred in regard to the matter of the absence of the defendant during a portion of the argument on the part of the prosecution. The record shows the presence of the defendant throughout the trial and at the rendition of the verdict. Whether it would be permissible to contradict these record recitals by affidavits and show thereby, as was attempted, that defendant was absent for a brief period during the conclusion of the argument on behalf of the State, need not be discussed, as it does not appear that defendant's absence was more than momentary, and by defendant's own affidavit it is only shown that the prosecuting attorney “had begun his final argument to the jury” when the defendant returned. In the absence of anything in the affidavits to the contrary, we shall not assume that defendant was prejudiced, or that any substantial portion of the concluding argument was made before defendant's return after recess. He who alleges error must prove it.

3. A PLEA OF NOT GUILTY.

III. Although there was no formal arraignment of the defendant, yet the record shows that he pleaded not guilty to the indictment, and this answers the objection on that score. The State v. Braunschweig, 36 Mo....