State v. Hoelscher

• Decision Date: 18 June 1925
• Parties: STATE OF MISSOURI, Respondent, v. BESS HOELSCHER, Appellant.
• Court: Missouri Court of Appeals

273 S.W. 1098

217 Mo.App. 156

STATE OF MISSOURI, Respondent, v. BESS HOELSCHER, Appellant.

Court of Appeals of Missouri, St. Louis

June 18, 1925

Appeal from the Circuit Court of Marion County.--Hon. Charles T Hays, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

E. W Nelson and Lewis O'Connor for appellant.

(1) The court declined to allow defendant to examine on voir dire examination certain jurors as to their membership in and affiliation with the Ku Klux Klan and declined to require such jurors to answer the following question: "Are you a member of or have affiliated with or attended any meetings of the Ku Klux Klan organization?" This was error because the information sought was certainly calculated to have enabled appellant to intelligently exercise her peremptory challenges. State v. Mann, 83 Mo. 589; State v King, 174 Mo. 658; State v. Miller, 207 S.W. 798; Bennett v. State, 261 S.W. 1036; Reich v. State, 251 S.W. 1073; Bensen v. State, 254 S.W. 794-795; Welk v. State, 257 S.W. 1098; Belcher v. State, 257 S.W. 1098. (2) The trial court erred in suggesting to certain jurors, in open court, the means and method by which they could evade a positive affirmative answer as to their membership and affiliation with the Ku Klux Klan. State v. Mann, 83 Mo. 589; State v. King, 174 Mo. 658; State v. Miller, 207 S.W. 798; Bennett v. State, 261 S.W. 1036; Reich v. State, 251 S.W. 1073; Bensen v. State, 254 S.W. 794-795; Welk v. State, 257 S.W. 1098; Belcher v. State, 257 S.W. 1098. (3) The verdict of the jury is the result of passion and prejudice on the part of the jury and is grossly excessive. State v. Predible, 165 Mo. 353; State v. Young, 119 Mo. 526. (4) The indictment does not charge a violation of the Missouri Prohibition Laws, and is insufficient in law. Sec. 6588, R. S. 1919, as Amended Laws 1921, p. 431; Sec. 6602, R. S. 1919; State v. Molten, 276 Mo. 358-359; State v. Wade, 267 Mo. 256; State v. Marcus, 171 Mo.App. 28; State v. Jump, 176 Mo.App. 299; State v. Mysenberg, 166 Mo. 25. (5) Instruction No. 1 is erroneous in that it tells the jury that they may convict the defendant, even though the liquor alleged to have been sold is not potable or capable of being used for beverage purposes. Cases cited under point four (supra).

Roy Hamlin, Prosecuting Attorney, and Ben Ely, Jr., Assistant Prosecuting Attorney, for respondent.

NIPPER, J. Daues, P. J., and Becker, J., concur.

OPINION

NIPPER, J.--

Defendant was convicted in the circuit court of Marion county on a charge of selling intoxicating liquors, to-wit, one pint of whiskey, containing one and one-half per cent or more of alcohol. She appeals from that conviction, and asks that the case be reversed: First, because the indictment does not define or describe the intoxicating liquor as it fails to allege that such liquor was capable of being used as a beverage; and, second, that the court erred in refusing to allow defendant's counsel to examine certain jurors on their voir dire examination as to their membership in, and affiliation with, the Ku Klux Klan, and refused to compel certain members of the jury panel to answer such question.

We will take up the last proposition first, because it is the one most strenuously urged, and in fact the only one of merit as we see it. When the regular panel of jurors called for the trial of this case were being examined on their voir dire, counsel for defendant sought to elicit from certain members of the panel whether or not they were members of, associated with, or attended meetings of, an organization called the Ku Klux Klan. The trial judge, before requiring the jurors to make any answer to this question, asked certain jurors if they belonged to any organization which imposed an obligation on its members to keep secret their membership in such organization. Upon such question being answered in the affirmative, the court asked if such jurors refused to answer by reason of such fact, and stated that if any juror refused to answer because of the fact that he had taken an obligation not to reveal his membership, he would not be required to answer. Several members of the panel refused to answer the question, and the court sustained them in their refusal. Defendant's counsel then sought the information as to whether or not such jurors had attended meetings of the organization known as the Ku Klux Klan, and also asked further questions which indicated that counsel was seeking to ascertain something of the object and purposes of the organization. Was the trial court's action in this respect error for which this case should be reversed?

This is, perhaps, the first time this identical question has reached the appellate courts of this State, although the extent of an accused's right to make an examination of jurors for the purpose of exercising his or her peremptory challenges has been discussed several times.

Perhaps the most exhaustive discussion of the question in this State is found in State v. Mann, 83 Mo. 589. In the Mann case the defendant was being tried for murder. His counsel asked the panel of forty on their voir dire whether any of them belonged to any organization or association having for its purposes the prosecution of criminal cases, or the aid of courts in the enforcement of criminal law, and whether or not such prospective jurors had taken any steps to urge stronger or speedier prosecution in criminal cases. The trial court held these questions improper, but the Supreme Court held that such questions were proper and relative, and that counsel for the accused had a right to the information sought by the questions asked for the purpose of enabling the accused to exercise judiciously his right of peremptory challenge. In discussing that proposition, the court said:

"One may not be incompetent as a juror, and yet may stand in such relations to the prosecutor, or the cause, as, if known to the accused, would be deemed a good reason for peremptorily challenging him. He is entitled to an impartial jury, and may make such inquiries as will enable him to secure that constitutional right. Must he exercise his right of peremptory challenge, without the privilege of making inquiries, except such as relate to the competency of the panel? . . . If such is the law, the right of peremptory challenge may prove a snare and, at best, is of no earthly value to the accused."

Many authorities are referred to as sustaining the proposition that the accused has a right to secure information of the character sought to enable him to make his peremptory challenges in a judicious and intelligent way. And, in concluding its discussion of that question, the court said:

"Innumerable authorities might be cited to show that the ruling of the circuit court, refusing to permit the jurors to answer the questions propounded was erroneous, but we think that the above are sufficient."

The Mann case was cited with approval by our Supreme Court in State v. Miller, 207 S.W. 797, wherein it was held that counsel for defendant had a right to examine the panel on their voir dire as to whether or not such jurors or any of them, attended a particular church where it appeared one of the important witnesses for the prosecution was the pastor of such church. The court held that such...