State v. Guy

• Decision Date: 30 April 1879
• Parties: THE STATE v. GUY, Appellant.
• Court: Missouri Supreme Court

69 Mo. 430

THE STATE

v.GUY, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Jefferson Circuit Court.--HON. LOUIS F. DINNING, Judge.

Williams & Green for appellant.

J. L. Smith, Attorney-General, and T. H. McMullen, Prosecuting Attorney of Jefferson county, for the State.

HENRY, J.

At the January term, 1879, of the Jefferson circuit court, the defendant was indicted, charged with having murdered Aaron McPete on the night of the 25th day of December, 1878. He was tried at the same term, convicted of murder in the first degree, and sentenced to be hanged. From the judgment he has appealed to this court.

A motion was made to quash the indictment on the ground that it charged that the defendant made the assault upon Aaron McPete, and shot Aaron McPeto. An examination of the original indictment which, by agreement, was sent here with the transcript, has satisfied us that there is no foundation in fact for the objection. Where the name in the indictment is, by defendant's counsel, taken for McPeto, the final “e” has somewhat the appearance of an “o,” but a close inspection shows that it is an “e,” in which the upward or finishing stroke is carried higher than where the name elsewhere occurs in the indictment, making it bear a resemblance to the letter “o.”

1. CHANGE OF VENUE FOR PREJUDICE OF INHABITANTS: decision of trial court conclusive.

Defendant complains, and assigns it as error, that the court refused his application for a change of venue. His application was in due form, and alleged that the minds of the inhabitants of Jefferson county were so prejudiced against him that he could not have a fair trial in said county. Evidence was introduced by him to prove the existence of such prejudice, and by the State to show that it did not exist. The finding of the circuit court on that issue is conclusive, and not to be interfered with by this court, unless it appear that palpable injustice has been done.

2. EVIDENCE: admissions of the accused.

The State was permitted, against objection of the defendant, to prove by the officer who arrested him, statements of the defendant in reply to inquiries made by the officer concerning the difficulty. No threats, or promises or other improper means were employed by the officer to induce the statements, which were, therefore, voluntary and admissible.

3. REMARKS BY THE PROSECUTING ATTORNEY ON THE TRIAL.

The defendant made a statement under oath before the coroner at the inquest, in regard to the killing, and, on the trial in the circuit court the prosecuting attorney, while the coroner was testifying, exhibited to him the ““return of inquest proceedings,” and asked him if “Monroe Guy made any statement to him, and if so, under what circumstances?” Defendant's counsel objected, “because any statement made by defendant at the inquest was made when he was not informed of his right to refuse to answer any question, and was without any counsel,” whereupon the prosecuting attorney remarked to the defendant's counsel, in the presence of the jury: “The defendant could have told the truth just as well before he consulted counsel as he could afterward;” and, for this remark of the prosecuting attorney, it is urged that the judgment should be reversed. How it could have prejudiced the defendant, it is impossible to conceive. It must be assumed that a jury is composed of men of some intelligence, and that such a side-bar remark would have any influence upon them whatever, is not to be supposed. The cases in which this court has censurel the conduct of prosecuting attorneys, does not warrant the inference that for every indiscretion committed by a prosecuting attorney in the progress of a trial in a criminal cause, this court will reverse the judgment.

On cross-examination of the defendant, who testified in his own behalf, the prosecuting attorney, holding in his hand the report of the proceedings of the inquest upon McPete, opened at Monroe Guy's testimony, asked him the following question: “Were you sworn as a witness at the inquest held on Aaron McPete?” to which defendant's counsel made the same objection that was made when the coroner was interrogated in relation to that testimony. Thereupon the prosecuting attorney stated to the court, in the presence of the jury, that he did not desire to cross-examine the witness on the subject of his testimony before the coroner, but simply to authenticate the signature, and then, if there were statements in such testimony contradictory of the evidence now given by the witness, to read the same to the jury to impeach the credibility of the witness; that the defendant having voluntarily become a witness, could be impeached, or his credibility...