State v. Hays

• Decision Date: 31 March 1856
• Citation: 23 Mo. 287
• Parties: THE STATE, Respondent, v. HAYS, Appellant.^a1
• Court: Missouri Supreme Court

23 Mo. 287

THE STATE, Respondent,

v.HAYS, Appellant.^a1

Supreme Court of Missouri.

March Term, 1856.

1. It is no ground for the reversal of a judgment of conviction upon an indictment for murder, that the court trying the cause, in impaneling the petit jury, required the State and the defendant to exercise their right of peremptory challenge at the same time, by striking from a list of thirty-six jurors the objectionable names, instead of conforming to the usual and better practice of allowing the right to be exercised as each juror was called to be sworn after having been found qualified to serve, the State speaking first and the defendant afterwards; the record not showing that the defendant was prejudiced.

2. Nor is it any ground for a reversal that the attorney general of the state, without the direction of the governor, assisted in the prosecution at the request of the circuit attorney, with the leave of the court, although not required to disclose whether he did so in his official capacity, or received a fee.

3. The Supreme Court will not reverse a judgment of conviction for murder, because the court below rejected evidence of threats made by the deceased against the prisoner, the record not showing whether the threats were recent or of long standing, and it appearing from all the evidence that the prisoner was the aggressor, and had sought the difficulty in which the deceased was killed.

4. Nor will the judgment be reversed for the exclusion of evidence explaining the prisoner's flight, the record not showing that his flight had been proved by the State or relied upon as any evidence of guilt.

5. Although, under our statute, the presumption from proof of the mere fact of killing, without proof of circumstances, is murder in the second degree, yet a case will not be reversed for an instruction that it is murder, without stating the degree, another instruction being given correctly stating what is necessary to constitute murder in the first degree.

Appeal from Randolph Circuit Court.

The facts are stated in the opinion of the court.

J. B. Clark and J. Davis, for appellant, argued the following points:

I. The Circuit Court erred in forcing the defendant to make his peremptory challenges before the State. (R. C. 1845, p. 878-9, § 3, 4; 3 Chitty's Practice, 872.)

II. The defendant ought to have been allowed to prove the threats of the deceased. His defense was, that he killed to save his own life, or to save himself from great personal injury. The threats were material to show that he had good cause for apprehension. (5 Geo. 85; 4 Barb. 460; 2 Comst. 202, per Bronson, J.; Whart. Crim. Law, 395; 1 Greenl. Ev. § 108; 11 Pick. 365.)

III. The defendant ought to have been allowed to prove that he was advised to abscond, to rebut the presumption of guilt from his flight, which had been given in evidence.

IV. The action of the court in permitting the attorney general to appear as counsel for the State in the absence of any authority, is objected to. He could not have been specially employed consistently with the duties of his office, and, under our statute, he had no right to prosecute unless so directed by the governor. At all events, the defendant had the right to have the jury informed whether he appeared as an officer, disinterestedly performing a sworn duty, or for a fee, so that the proper weight might be given to his acts. (R. C. 1845, p. 155, § 2; Commonwealth v. Knapp, 10 Pick. 480.)

V. The first, second, third, fourth and ninth instructions given for the State were improper.

VI. The tenth instruction was improper. As all the other instructions had spoken of murder in the first degree, this one left the jury to infer that the presumption from the mere fact of killing was murder in the first degree, and that the burden was on the defendant to reduce the crime below that degree. This is not the law. (State v. Dunn, 18 Mo. 423; 2 Grattan, 594; Wright, 20; 1 McCord, 449; 10 Johns. 365; 16 Mo. 394; 1 Greenl. Ev. § 201.)

VII. The instructions asked by the defendant ought to have been given.

Gardenhire, (attorney general,) for the State.

I. The number of challenges to which each party is entitled is regulated by statute, but the manner of making the challenges is left to the direction of the court, and this court will not interfere with its exercise. (R. C. 1845, p. 878, 879; 16 Mo. 391.)

II. Brown's threats were properly excluded. (17 Mo. 544; 14 Maine, 248; 9 Metc. 110; 4 Harrington, 562; 4 Iredell, 409; Whart. Crim. Law, 234, 235, 289 to 397 and notes.) If, however, the court erred in this matter, it does not affect this case, as the record shows no evidence tending to prove provocation by Brown, or reasonable cause to apprehend personal injury. The homicide was not brought about by provocation at the time of the act. (6 Leigh, 791.) The prisoner's belief as to reasonable cause had nothing to do with it.

III. Exclusion of evidence that the prisoner was advised to run off was proper under the circumstances of this case. (21 Wend. 509; Whart. Crim. Law, 259, 269.)

IV. The eighth instruction given for the State was proper. (21 Wend. 550-1.)

V. The tenth instruction for the State was correct. (Addison, 255; 1 Leigh, 598; 6 Rand. 721; Wharton, 268; 4 Mass. 391; 2 Russ. on Crimes, 231; 3 Maule & Sel. 15.)

VI. It was within the discretion of the court below to admit other counsel to aid the circuit attorney in the prosecution, with which this court will not interfere. (2 New Jersey, 212; 14 Ala. 552; 18 Conn. 244.)

RYLAND, Judge, delivered the opinion of the court.

At the June term of the Circuit Court, within and for the county of Howard, in the year eighteen hundred and fifty-four, Etheldred J. Hays was indicted for the murder of John W. Brown. Upon the petition of the defendant, the venue was changed to the Circuit Court of the county of Randolph. At the May term, 1855, of the Randolph Circuit Court, the trial upon the indictment against the prisoner was had, and the jury found him guilty of murder in the first degree. He moved for a new trial, which was refused by the court. He also moved in arrest of judgment, which motion being overruled, he prayed for an appeal, and the case is brought to this court for revision.

The counsel for the prisoner have made before this court several points upon which they depend for a reversal of the judgment; these points will be noticed in the opinion, though not in the order set forth in the brief of the counsel; yet each point will be observed, as our attention and consideration have been bestowed with much care upon the whole case.

The first point of the defendant's counsel is in regard to the impaneling of the petit jury who tried the case. The bill of exceptions shows that when the cause was taken up for trial, the defendant moved the court to compel the State, by her circuit attorney, to make her peremptory challenges to the panel before the defendant should be compelled to make his peremptory challenges, which the court refused to do, and compelled the defendant to strike from the panel his peremptory challenges, without knowing which of the panel the State would strike off, upon her peremptory challenges, making both parties challenge at the same time, to which opinion the defendant excepted. The record does not show us how this was done. There might have been thirty-six jurors present, free from all objection. Then the State having four peremptory challenges, and the defendant twenty, the remaining twelve would be the jury. If so, the defendant has not been deprived of any advantage or legal right. He has challenged his twenty, but he says he may have challenged some of those who had been challenged by the State, and had he known whom the State would have challenged, it would have given him the power to have challenged others. All this may be so, and still he has lost no right or privilege. He had the thirty-six men from whom his jury were to be selected. The State could refuse four and he twenty. No one of the jurors was put on his panel against his right, nor in violation of his right. Suppose the State's four and his twenty were confined, as it is possible they might be, to the same twenty men, leaving sixteen behind, why then the State has just as much right to complain of having lost her four challenges, because she did not know those whom he would challenge, as he has. The first twelve then called will make the jury, and the fact that there are sixteen of which to make a jury, instead of twelve, can surely be no deprivation of any right or privilege. We do not think this such an error as would justify the court in reversing. The prisoner does not appear to have been deprived of any legal right. In what order the parties shall exercise this right, is a matter within the discretion of the Circuit Court. The simplest rule upon this subject, and one to which there would seem to be no objection, is that of requiring the parties to challenge as the jurors are called and pronounced qualified, the plaintiff always speaking first. This rule, I believe, has been generally practiced; at least as far as my experience upon the Circuit Court extends, I never knew it deviated from, and that experience embraces a period of eighteen years. But as the rule adopted in this case deprives the prisoner of no legal right, and it does not appear that the discretion was exercised oppressively, it forms no ground for reversal. The right of peremptory challenges is a right to reject, and not to select a juror. In the case of the United States v. Marchant et al., (4 Mason, 160,) Justice Story said: “The right to challenge for cause is unlimited, but the right of peremptory challenges, without cause, is limited. What is the right of peremptory challenge but a right to exclude from the trial any persons who are disagreeable to the party on trial. Suppose the panel to consist of seventy-two persons and the challenges to be limited to twenty, all that the prisoner can do is to exclude twenty...