State v. Holme

• Decision Date: 31 October 1873
• Citation: 54 Mo. 153
• Parties: THE STATE OF MISSOURI, Respondent v. ANTON HOLME, Appellant.
• Court: Missouri Supreme Court

54 Mo. 153

THE STATE OF MISSOURI, Respondent

v.ANTON HOLME, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Louis Criminal Court.

Michael B. Jonas, for Apellant.

I. The jury should have been selected by the clerk of the court from the first twelve names remaining on the list unchallenged. (W. S., 800, § 25; State vs. Hays, 23 Mo., 287.)

II. The court erred in defining “deliberately and premeditatedly” in the first instruction given. (Comm. vs. Drum, 58 Penn. St., 9; 9 Whar. Homicide, [[[[[Ed.1855] 368-372; Bouv.Law Dic. “Deliberation and Premeditation;” 2 Whar.Am. Crim. Law, 133; Dale vs. State, 10 Yerg., [Tenn.] 551; Anthony vs. State, 1 Meigs, [Tenn.] 265.)

III. Express malice or malice in fact is requisite to be proved. (Bower vs. State, 5 Mo., 364, dissenting opinion; State vs. Phillips, 24 Mo., 475; State vs. Starr, 38 Mo., 270; Comm. vs. Drum., 58 Penn. St., 9; Comm. vs. O'Hara, 2 Va. Cases, 86; Whiteford vs. Comm., 6 Rand., 721; Wilson vs. People, 52 N. Y., reported in Am. Law Rev. for Oct 1873, p. 42; Mitchell vs. State, 5 Yerg., 352; Short vs. State, 7 Yerg., 510; Coffee vs. State, 3 Yerg., 283; Witt vs. State, 6 Cold., 5; Comm. vs. York, dissenting opinion of Judge Wilde, 9 Met., 125; Maher vs. People, 10 Mich., 218; Shoemaker vs. State, 12 Ohio, 53; State vs. Turner, Wright, 28; Lisbon vs. Lyman, 49 N. H., 553.)

IV. It is not necessary to reduce the offense to manslaughter that the wife shall be found in the act of adultery. (Maher vs. People, 10 Mich., 212.)

V. It is a true test of manslaughter, that the homicide be committed in a sudden transport of passion, arising upon a reasonable provocation and without malice. The authorities use the terms “adequate, sufficient and reasonable,” when applied to the provocation, as equivalent. (1 East R. C., 232; 1 Whar. Cr. Law, § 987; 2 Bish. Cr. Law, § 630 and n.; Young vs. State, 11 Humph., 200, and authorities cited.)

VI. A reasonable provocation is one for which a good reason can be given, and which might naturally and rationally, according to the laws of the human mind, produce the alleged sudden transport of passion.

J. C. Normile, for Respondent.

I. The law (W. S., 800, § 25,) directing the impaneling of juries, was substantially complied with. Such laws are merely directory. (Sedg. Stat. and Const. Law, 368; 1 Grah. & Wat. New Trial, 537; Birchard vs. Booth, 4 Wis., 67; Clarke vs. Comm., 29 Penn. St., 129; Bristow vs. Comm., 15 Gratt., 634; State vs. Gut 13 Minn., 341.)

II. Mistakes or omissions of officers in impaneling juries when no fraud or collusion is intended, and no iujury results to the defendant, is no ground for a new trial. (1 Grah. & Wat. New Trials, 35-6, 40; Steele vs. Malony, 1 Minn., 347; Thrall vs. Smiley, 9 Cal., 529.)

III. “In matters of form in impaneling a jury, the courts both in Great Britain and this country, have refused to interfere when points merely technical and unproductive of any injury have been presented; and have by a series of decisions placed all applications of this kind within the principle of judicial discretion.” (1 Grah. & Wat., 37; Forsythe vs. State, 6 Ohio, 19.)

IV. It is no ground for reversal to refuse giving an instruction which has already been given in another form. (Maston vs. Fanning, 9 Mo., 305; Webb vs. Browning, 14 Mo., 354; Huntsman vs. Rutherford, 13 Mo., 465; Darbv vs. Charless, 13 Mo., 600; Pond vs. Wyman, 15 Mo., 175; State vs. Floyd, 15 Mo., 349; Phillips vs. Smoot, 15 Mo., 598; State vs. Smith, 31 Mo., 566; Beale vs. Cullum, 31 Mo., 258.)

WAGNER, Judge, delivered the opinion of the court.

The counsel for the appellant in this case have urged and insisted that the court below committed many errors in its rulings; but after a careful scrutiny of the record, we find the objections are nearly all so technical and unsubstantial in character, that they require no consideration at our hands. Such as seem to have any merit we will proceed to notice.

It appears, that after the requisite number of jurors had been called and examined, and the prosecution and defense had both exercised their right of challenge, there still remained fifteen qualified jurors competent to try the cause. The court then directed the marshal to call a jury of those who were unchallenged. And he proceeded to call the same, but omitted to call the names of M'Cutcheon and Stratman, who were among the first twelve of the fifteen, and as the jurors were so called, their names were recorded by the clerk.

The prisoner, by his counsel, objected to the marshal calling the jurors, and also objected to the panel as then constituted. Both objections were overruled.

The statute in reference to the impaneling of juries provides, that the sheriff or other officer, summoning a jury, shall deliver to the clerk a list of the names of all jurors summoned, who shall strike from such list the names of all persons excused by the court, or challenged for cause, or peremptorily challenged by the parties; and he shall record in his minute book the first twelve names remaining on the list; and the jurors, whose names are thus recorded, shall be the jury to try the cause for which they are selected. (W. S., 800, § 25.)

The objection, that the marshal instead of the clerk, called the names of the jurors, is unavailing. The calling is a matter of mere form. And although the statute designates the clerk as the proper person, that part may safely be regarded as directory. So that the persons, whom the law points out as the jurors, are selected and impaneled, it is immaterial who records and calls their names.

But the objection, that two of the persons, whose names were among the first twelve on the list, were omitted to be called, and thereby excluded from the jury, presents a more grave and serious question. The law is peremptory, that the first twelve names remaining on the list shall be recorded, and that the names thus recorded shall be the jury to try the cause for which they are selected.

The first twelve constitute the properly selected jurors, and neither party can be deprived of this legal selection without his consent.

In looking over the list of names of those summoned and returned by the officer, the party relying upon the statutory provision, that the first twelve names remaining shall be the jury selected to try the cause, may be entirely satisfied with them, and therefore decline to exercise his privilege of making peremptory challenges.

But if the court may disregard this provision, and arbitrarily refuse to have the first twelve called, and call others in their stead, then surely he has not obtained the jury that he selected.

If the court may refuse to have two called among the first twelve, it may refuse a half a dozen, and if it is not bound to take the first twelve, it may take the last twelve. Such a practice would not only set at defiance the plain mandates of the statute, but it would lead to a confusion and uncertainty utterly destructive of the right of parties.

It is however contended, that, admitting that the statute was not followed, it does not appear that the prisoner was injured by the action of the court, and therefore, it should be disregarded.

In 1 Graham and Waterman on New Trials, p. 38, it is laid down, that in mere matters of form in impaneling a jury, the courts, both in Great Britain and this country, have refused to interfere, where points merely technical and unproductive of any injury have been presented; and have by a series of decisions placed all applications of this kind within the principle of judicial discretion.

A few cases will be adverted to in illustration of the principle, where the courts refused to interfere on the ground that the party was not injured.

Thus, in the State vs. Hays, (23 Mo., 287,) 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 this ruling the defendant excepted. On appeal to this court, Mr. Justice Ryland, in delivering the opinion, said, “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 the 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 out of which to make a jury instead of twelve, can surely be no deprivation of any right or privilege.”

It will be perceived, that the case thus cited, differs widely from the one at bar.

There the prisoner made his challenges, and the first twelve remaining on the panel were duly called and sworn, as the jury selected to try the cause. But it is clearly announced in the decision, that the first twelve remaining on...