State v. Hultz

• Decision Date: 30 June 1891
• Citation: 106 Mo. 41,16 S.W. 940
• Parties: STATE v. HULTZ.
• Court: Missouri Supreme Court

16 S.W. 940

106 Mo. 41

STATE v. HULTZ.

Supreme Court of Missouri, Division No. 2.

June 30, 1891.

SHERIFF — DISQUALIFICATION — RECORD — JURY — IMPANELING.

1. Under Rev. St. Mo. 1889, § 3244, providing that, where the sheriff is interested or prejudiced, the court may appoint one or more persons to perform his duties, the fact of the sheriff's interest or prejudice may be ascertained by the court from ex parte affidavits, and it is no abuse of discretion to remove the sheriff, and appoint elisors to summon the venire and perform the other duties of the sheriff in a murder trial, when the prosecuting attorney makes affidavit that the sheriff and coroner are prejudiced in favor of defendant.

2. Where the bill of exceptions shows that the voir dire examination of a juror disclosed that he was competent, but that, according to the stenographer's notes, the judge ordered him to "stand aside," which he did not do, but remained on the panel, and was not afterwards challenged, it will be presumed that the stenographer was mistaken, and that the judge did not order the juror to stand aside.

3. A juror who states that he has formed an opinion from evidence he heard at the preliminary trial and the report of the evidence in a local paper, but that he can discard his formed opinion, and render an unbiased verdict, is incompetent.

4. Where, on trial for murder, defendant testifies that he fired three shots at deceased, aiming to hit him, and gives a minute account of his meeting with deceased, and the difficulty that ensued, the refusal of the court to allow him to state what his intent was in firing the shots is not prejudicial error.

Appeal from circuit court, Boone county; G. H. BURCKHARTT, Judge.

At the October term of the Boone circuit court, 1888, the grand jury returned an indictment against Marshall J. Hultz for murder in the first degree in the killing of Allen Vawter in said county on the 7th of May, 1888. At this same term defendant filed and made his application for a change of venue from Boone county on account of the prejudice of the inhabitants of said county against him. This application was overruled by the court. At the April term, 1889, when the cause was reached, and, after both state and defendant had announced ready for trial, the counsel for the state, without notice to defendant, filed a motion to set aside the sheriff of the county and the coroner of the county, and appoint elisors to act in their stead in summoning the jury, and performing all other duties of the sheriff during the trial. This application is as follows: "State of Missouri, Plaintiff, v. Marshall J. Hultz, Defendant. The state comes by her attorney, and moves the court for an order appointing one or more impartial persons to act as elisors in summoning the special venire ordered in this cause, and to do and perform all other functions and duties devolved upon the sheriff in the further conduct of the trial thereof, for the reasons following: Because said sheriff and coroner are unduly biased and prejudiced in favor of the defendant in the cause, and will not, for said reason, impartially summon the venire ordered, and return unbiased and impartial persons thereon, or execute impartially the other duties involved in the trial of said cause. [Signed] C. H. GORDON. C. H. Gordon, prosecuting attorney for the state, makes oath, and says he believes the matters and facts as set out in the foregoing motion are true. [Signed] C. H. GORDON. Subscribed and sworn to before me this 19th day of April, 1889. [Signed] J. W. STONE, Clerk." Instantly on the filing of said motion the defendant objected to the motion and affidavit as being insufficient in itself alone to authorize the court to set aside said officers, or either of them, and to appoint other persons to exercise their official functions; and thereupon the court announced its decision to be that said motion and affidavit were sufficient, and that it was, by reason of the filing thereof, the duty of the court to set aside said officers, and the deputies of the sheriff also, and to appoint two or more elisors as therein prayed;" and accordingly appointed W. J. Roberts and M. L. Edwards to act as elisors in said cause, which they proceeded to do, to which action of the court the defendant at the time objected and saved his exceptions. On the list of the panel of 40 jurors, as finally selected, is the name of J. T. Rowland. Counsel for defendant make the point that, when this juror was examined on his voir dire, the court ordered him to "stand aside," but he remained in the box, and his name was improperly left on the panel. On his voir dire this juror answered that he had not formed or expressed any opinion as to the guilt or innocence of the defendant; was not related to defendant or deceased; had no conscientious scruples against the death penalty; was not on the grand jury that found the indictment; and was not a witness in the case. On cross-examination said he had read an account of the killing in the county papers, but formed no opinion from what he read; did not read the evidence taken at the preliminary trial. The stenographer reports the counsel for defendant, Mr. Turner, as saying: "Your honor, I think this excludes him." "The court. Stand aside." When the panel was completed, defendant, by his counsel, moved to quash the panel, on the ground that the court improperly set aside the sheriff and his deputies and the coroner, and appointed the elisors, and holding that the ex parte affidavit of the prosecuting attorney was of itself insufficient to set aside the duly-elected sheriff. This motion was overruled, and defendant excepted. During the trial defendant was sworn as a witness in his own behalf, and, among other things, his counsel asked him this question: "Now, Mr. Hultz, state to the jury what your intent or purpose was in firing that pistol at Mr. Vawter?" to which the state objected, and the objection was sustained by the court, to which action of the court defendant at the time duly excepted. R. B. Akeman, who was summoned as a juror, stated on his voir dire examination, as to his qualification to sit as a juror, that he had heard a part of the preliminary trial, and afterwards had read a full account of the tragedy, and also a report of the evidence on that trial in a local newspaper, the Columbia Herald; that he had formed, but had not expressed, an opinion; that he could hear the evidence and render a verdict unbiased; that he could discard his former opinion. The court refused to accept him as a juror, and defendant excepted.

Boulware & Turner, for appellant. Atty. Gen. Wood and Odon Guitar, for the State.

GANTT, J., (after stating the facts as above.)

The defendant was indicted for murder in the first degree at the October term, 1888, of the Boone county circuit court. He was tried at the April term, 1889, and convicted of murder in the second degree, and his sentence fixed at 10 years in the penitentiary. The errors assigned are, principally, that the court erred in setting aside the sheriff and coroner of the county, and appointing two citizens of the county elisors to summon the jury, and perform all the other acts incumbent upon the sheriff in the trial of the cause; in permitting J. T. Rowland to serve on the jury of 40, and on the panel of 12 finally selected; in refusing to permit Akeman to serve as a juror; refusing to permit the defendant to answer the question put to him by his counsel to state his purpose or intent in shooting the deceased, Vawter; and in permitting the jury to attend, in the charge of the sheriff, the lecture of Rev. Sam Jones, on the subject "Get there." Considering these in the order in which they occurred and appear in the record, we will first inquire into the propriety of the court's ruling in appointing elisors in lieu of the sheriff and coroner.

The power to appoint elisors to select the jury where the sheriff was party to the suit, or was of kin to the parties, or was prejudiced, was well settled at the common law. Bac. Abr. tit. "Juries," et seq. The authority given our courts to appoint elisors is found in section 1038, Rev. St. 1879, or section 3244, Rev. St. 1889, and is as follows: "Where there is no sheriff or other ministerial officer qualified to act, or where they are interested or prejudiced, the court may appoint one or more persons to execute its process, and perform any other duty of such officer, who shall be entitled to such fees for their services in each cause as are allowed by law to sheriffs in like cases." The contention of the defendant is that the court committed error in not requiring more evidence of the partiality and prejudice of the sheriff and coroner than the affidavit of the prosecuting attorney. It would seem that, under our system of government, where the people...