State v. Harlow

• Decision Date: 31 July 1855
• Citation: 21 Mo. 446
• Parties: THE STATE, Respondent, v. HARLOW, Appellant.
• Court: Missouri Supreme Court

21 Mo. 446

THE STATE, Respondent,

v.HARLOW, Appellant.

Supreme Court of Missouri.

July Term, 1855.

1. The separation of the jury in a murder case held no ground for a new trial, there being no ground to suspect that they had been tampered with.

2. Intoxication is no justification or extenuation of a homicide.

Appeal from Chariton Circuit Court.

The facts are stated in the opinion of Judge Ryland.

Clark, for appellant.

1. The court erred in giving the 5th instruction for the state. (Wharton's Crim. Law, 395. Monroe v. State, 5 Geo. 2 Comst. 202.) 2. The 7th instruction was erroneous. (18 Mo. Rep. 423. 8 Smedes & Marsh. 401.) 3. The 3d instruction asked by defendant should have been given. 4. The 4th instruction asked by defendant should have been given. (11 Humph. 154.) 5. The 9th and 18th instructions for defendant should have been given. 6. A new trial should have been granted for the misconduct of the jury. (9 Smedes & Marsh. 465. 13 ib. 398.)

Gardenhire, (attorney general,) for the State.

RYLAND, Judge, delivered the opinion of the court.

Kinsolving Harlow was indicted at the May term of the Circuit Court of Chariton county, in the year eighteen hundred and fifty-five, for the murder of Green B. Andrews. He was tried at the same term and was convicted; the jury finding him guilty of manslaughter in the first degree, and assessing his punishment to ten years' imprisonment in the state penitentiary.

The defendant moved for a new trial; also, in arrest of judgment; which motions being denied, he excepted, and has brought the case here by appeal. His counsel in this court contends that the Circuit Court erred in giving and in refusing to give instructions, and relies principally upon these errors, as alleged by him, for a reversal of the judgment below. He also alleges the separation of a part of the jury from the rest, and the conversing of one of the jurors with a person, not an officer of the court, and without the permission of the court, as a sufficient cause for a new trial, and that the refusal of the lower court to grant a new trial for this cause is error.

In regard to the separation of the jury, it appears that sometime during the trial, while the jury were confined in their room in the hotel, the sheriff went out of the room with two or three of the jurors, a short distance, and stayed a short time, leaving the rest of the jury in the room, with no officer of the court with them; that the sheriff was in sight of the room all the time; that persons might have entered the jury-room and conversed with the jurors, without the sheriff seeing them or hearing them; but the sheriff stated that he believed no such thing was done in this case. The conversation of the juror was in hearing of others; it related to a different matter altogether. It seems that one of the jurors had come to the town where the trial was to take place, in a buggy, with Henry Shrader; that the juror told Shrader not to leave him, to go to the hotel and stay one day longer and he would pay his expenses, by which time he (the juror) thought he would be able to return home with him. This was all the conversation held by the juror.

There is no pretence that the jury were tampered with in this case. In our state, the conveniences for the accommodation of jurors and witnesses, during their attendance at courts, in many of the counties, are very inferior; no court houses in some, and the taverns and public houses are the only places where rooms can be obtained at all, and these of the most inconvenient kind. Were this court to apply the old strict and rigid rules, in regard to the conduct of jurymen in criminal cases, which have been observed in England and in some of the older states of the Union, it would, in effect, turn loose the guilty upon the community, without a probability of punishment. It would virtually put a stop to the punishment of offences.

The trial of offences should be conducted with the utmost care to avoid all improper influences bearing on the minds of the jurors; and where such influences have been used, or any tampering with jurors made to appear, the courts should correct such abuses by granting new trials.

The possibility of the use of such influences, or of the tampering, will not alone be sufficient to warrant the granting of new trials; but wherever facts warrant the belief of any improper interference with the deliberations of the jury, there the new trial should be given. Such has been the doctrine of this court heretofore, and it will still continue. See State v. Igo, decided at this term. So far, then, as regards the conduct of the juror, in this case, there was nothing which would justify the lower court in granting a new trial; nor was the bare possibility that, whilst the sheriff was out with two or three of the jurors for a short time, and at a short distance from the jailroom, in the hotel, persons might have entered the jury-room and talked with them about the trial, sufficient ground for the Circuit Court to sustain the motion for a new trial.

In order to determine properly the questions arising upon the giving and the refusing to give the instructions in this case, I have thought it most proper to state the evidence as preserved in the bill of exceptions. Before I do this, let me once more condemn the useless and worse than useless practice of stretching out a few propositions of law, applicable to the case, into a string of instructions, which generally becomes weaker as it grows in length. Here are asked for eight and twenty instructions!--eight for the State, and twenty for the defendant, and, altogether, twenty-one given to the jury. This, in a case involving but two or three simple propositions of law, which could be well and plainly laid before the jury in a few pointed, pithy and clear instructions, is condemned as meriting our serious disapprobation. The following is the evidence: The State introduced Daniel J. Hays, who being duly sworn, stated that the last of July, or the 1st of August, some two years ago, as he was coming from Glasgow, when he got to the brink of Chariton river, he saw Green B. Andrews and the defendant in the boat, about to start over the river; he spoke to them, and asked them to wait for him; that the boat was detained and he rode in the boat, on his horse, by Andrews and defendant, who were standing together, talking: he spoke to them as he passed them in the boat, but neither spoke to him. As soon as he passed them, he got down off his horse and turned around; as soon as he turned around, he saw a knife, of considerable size for a pocket knife, perfectly new, drawn open in the defendant's right hand. Defendant said to Andrews, “you have a knife;” Andrews said he did not have one; defendant reached out his hand and put his finger in Andrews' waistcoat pocket, as witness thought, to feel for a knife. Just at this time, Andrews raised his hands to his side, as if to show he had no knife, when a knife, two or three inches long, slipped from under his sleeve, point foremost, being open; and as soon as Andrews saw his knife, he turned and ran out off the boat, and defendant was running after him; and just as Andrews reached the end of the boat at the bank, defendant struck him overhanded, with a knife in his right hand, in the left side of his neck, and Andrews told defendant not to strike him any more. When Andrews started to run out of the boat, he and defendant were nearest the end of the boat he went out at, and he thinks he ran from fifteen to thirty feet before defendant struck him; that the boat was about thirty or thirty-five feet long; that, so soon as Andrews was struck and got on the east bank, the boat was shoved off by the defendant, witness and Harlow in it, leaving Andrews and the ferryman on the east bank. The boat landed at the point made by the junction of the east and west forks of the river, where witness got out, leaving defendant in the boat. At this time, Andrews spoke to witness, to return to him--that he was badly hurt; but the defendant shoved off the boat and carried it to the west side of the west fork of the river, and then left. Witness saw defendant no more; that he, witness, immediately went a short distance on the west fork, and got a Mr. Menifee, who was on the west side of west fork, to come down and cross the boat to him, and that witness and Menifee then went to Andrews; that when they got to Andrews, they found him stabbed in the neck, as above stated, very badly, and seemed to be suffering very much; that witness remained with him a short time after, and left before he died. He believes the wound was mortal, and that it killed him; that no one was on the boat, when he first went in it, but Andrews, the defendant, a negro man, (the ferryman,) and himself; that he was drinking, somewhat intoxicated, but not so drunk but that he could recollect what took place, and remember distinctly that he had his horse in the boat with him, and took him out of the boat when he got out, and that he met no one that evening between the river and home; that he did not consider a man drunk as long as he could talk and get about; that Andrews and defendant were both somewhat intoxicated, but not drunk; that witness had liquor with him and drank after Andrews was struck, and before he finally left Andrews. This killing was done in Chariton county, in the state of Missouri.

The State then called Col. John Moore as a witness, who being duly sworn, stated that the afternoon of the day on which Green B. Andrews was killed, he rode up to the office of one William A. McLure, near Monticello, having heard that two men were down the road, in the direction of Glasgow, about to fight; he looked in that direction and saw two men coming up the road in the direction of where witness was, who proved to be Green B. Andrews and the defendant; that when the said Green B. Andrews and defendant came up near where witness was, the defendant turned up the Monticello road and...