State v. Howland

• Decision Date: 31 January 1894
• Citation: 119 Mo. 419,24 S.W. 1016
• Parties: STATE v. HOWLAND.
• Court: Missouri Supreme Court

24 S.W. 1016

119 Mo. 419

STATE v. HOWLAND.

Supreme Court of Missouri, Division No. 2.

January 31, 1894.

CRIMINAL LAW — SEPARATION OF JURY.

If the jury separates before the case has been finally submitted to them, the state may show that they were not subjected to improper influences during such separation; but a separation, without leave of court, after they have retired for deliberation, requires the granting of a new trial, as expressly provided by Rev. St. 1889, § 4269.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

Allen Howland was convicted of grand larceny, and appeals. Reversed.

Harber & Knight and S. S. Kelso, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdan, Asst. Atty. Gen., for the State.

SHERWOOD, J.

Indictment for grand larceny, of the sum of $50, the property of one Wooley. The trial resulted in a conviction, the punishment being assessed at two years in the penitentiary. Hence, this appeal. Of the errors assigned, it is necessary to notice but this one: It appears from an affidavit filed in support of the motion for a new trial that, while the jury were on their way to their room, two of the jury, Saunders and Perkins, separated from the other jurors, who were in the care of the deputy sheriff, and went to a water closet some 200 feet distant, and out of the view of the other jurymen, and not accompanied by any officer. This affidavit made by Barr and Bailey is uncontradicted, though it does not appear therefrom whether the jury were returning to their room to consider of their verdict or not, nor is it material, so far as concerns the proper conclusion to be reached in this case. If the separation occurred before the cause was finally submitted to the jury, then, under the ruling of this court made upon section 4209, Rev. St. 1889, in State v. Steifel, 106 Mo. 129, 17 S. W. 227, — that, if the jury separate before retiring to consider of their verdict, this will be ground for a new trial, unless the state affirmatively show that the jurors were not subjected to improper influences. As the state has made no such showing here, the same result must follow in this case as in that, if the separation occurred before ultimate retirement of the jury for deliberation. If, however, the jury had already retired to their room for deliberation, and had merely been out in charge of an officer to get a meal, then section 4269, Rev. St. 1889, would apply, which authorizes a new trial to be granted, where a jury,...