State v. Hunt

• Decision Date: 07 December 1897
• Parties: The State v. Hunt, Appellant
• Court: Missouri Supreme Court

43 S.W. 389

141 Mo. 626

The State v. Hunt, Appellant

Supreme Court of Missouri, Second Division

December 7, 1897

Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

Joe E Cupp and E. M. Bass for appellant.

(1) One who has "read the0evidence taken before the coroner's jury, either as originally written, or as printed in a newspaper . . . . and formed an opinion therefrom, as a matter of law is disqualified, and he can neither form one of the list of forty, nor one of the jury which tries the issue joined." State v. Culler, 82 Mo. 626; State v. Taylor, 134 Mo. 138. (2) The court erred in making its order requiring the clerk to substitute the name of Armistead Selby for that of Armistead Delly, upon the records as well as upon the list of the forty jurors as originally furnished defendant, and after the State had made its challenges, and within two hours of the time the defendant was required to return his challenges into court and while the defendant was absent and confined in jail, nor was he in the court room pending the consideration thereof. State v. Clark, 121 Mo. 513; R. S. 1889, sec. 4191; State v. Smith, 90 Mo. 37. (3) The court erred in the instructions. Those given were in conflict. Those refused were proper and should have been given. State v Wisdom, 119 Mo. 552; State v. Fairlamb, 121 Mo. 147; R. S. 1889, sec. 4208. (4) The trial court committed reversible error in refusing to allow the defendant to file an amended ground to his motion for a new trial, or a supplemental motion for a new trial. State v. Wyatt, 50 Mo. 309; State v. Taylor, 64 Mo. 137.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The instructions given by the court on behalf of the State on the subject of murder in the first degree are almost a literal copy of those given for the State in the case of State v. Duestrow, 137 Mo. 44; State v. Williamson, 106 Mo. 162; State v. Bryant, 93 Mo. 273; State v. Pagels, 92 Mo. 300. (2) The burden of establishing the defense of insanity in a murder trial rests on the defendant. State v. Schaefer, 116 Mo. 112. (3) The instructions given, both for plaintiff and defendant, cover every legal aspect of the case warranted by the evidence. State v. DeMosse, 98 Mo. 344; State v. Foster, 115 Mo. 448; State v. Cantlin, 118 Mo. 111; State v. Paxton, 126 Mo. 513; State v. Nelson, 132 Mo. 196. (4) The jury were properly instructed upon the question of flight. The purpose of the flight is a question for the jury and not the court. They were so instructed. State v. MaFoo, 110 Mo. 7; State v. Potter, 108 Mo. 424. (5) In substituting the name of Armistead Selby for Armistead Delly no change of men was made, but simply a change in name, which could by no means work a prejudice to the defendant. (6) No error was committed by the trial court in refusing defendant to file his amended or supplementary motion for a new trial. R. S. 1889, sec. 4270; State v. Brooks, 92 Mo. 591.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

From a conviction of murder in the first degree for having on the twenty-ninth day of August, 1896, shot to death with a pistol his daughter Mattie Ree Hunt, defendant appeals. The homicide was committed in Boone county, where the trial was had at the November term, 1897, of the circuit court of that county.

The defense was insanity.

The facts were but few, and about as follows:

At the time of the homicide the defendant, his wife, and their daughter Mattie Ree Hunt, lived on a small piece of property of which defendant was the owner, in Columbia, Missouri. He had for some time been wanting to trade the town property for a small tract of land in the country for the purpose of moving onto it with his family, to which the wife would not consent, and over this and other disagreements they had many quarrels and bitter controversies. Defendant was given to drink and intoxication, and when under the influence of liquor the quarrels between himself and wife were the more frequent. It was shown that he had on divers occasions threatened to take the life of his wife, the deceased, and himself. Defendant had several sons, all of whom lived in the country. On the evening of August 29, 1896, defendant returned home from a visit to one of his sons in the country, and shortly thereafter began quarreling with his wife. At the time of his return his daughter, the deceased, was in town, having gone there to buy some groceries for the family, and upon her return found the defendant and her mother still quarreling, whereupon deceased said to her mother: "I would not stand it." The defendant at once drew his pistol from his pocket and shot deceased, from the effects of which she died within three or four days next thereafter.

It was shown on the part of defendant that some seven years prior to the homicide defendant had two slight sunstrokes which affected his mind, but this evidence as to the condition of his mind was contradicted by the State.

The trial was had to a jury, selected from a panel of forty jurymen, four of whom, viz., James Gibbs, William Prather, John Ballenger, and W. H. H. Maxwell, were challenged for cause, and the name of one Armistead Selby, who was regularly sworn, found to be qualified to sit upon the trial and accepted, appeared upon the record and list of jurors furnished to the defendant as Armistead Delly, until within two hours of the time in which defendant was required to pass upon the panel and to enter upon his trial, when the court over the objection of defendant by entry of record required the clerk of the court to substitute the name of Armistead Selby for that of Armistead Delly. Each of the jurors named, except Selby, answered upon his examination touching his qualification as a juror that he had formed and expressed an opinion as to the guilt or innocence of the defendant from newspaper accounts which purported to give a detailed statement of what was supposed to be the facts in regard to the homicide, and that he still entertained that opinion, which it would require evidence to remove; but that notwithstanding such opinion he could give the defendant as fair and impartial a trial as though he had never formed an opinion or had never heard of the case. The action of the court in overruling defendant's challenges to these jurors is assigned for error, and State v. Culler, 82 Mo. 623, and State v. Taylor, 134 Mo. 149, 35 S.W. 92, are relied upon as sustaining that contention, but there is a marked distinction between those cases and the one at bar. In the Culler case it was held that a person who had read the evidence with respect to the homicide as originally written, or as printed in a newspaper, and formed an opinion therefrom with respect to the guilt or innocence of the person then on trial, was disqualified from serving as a juror upon the trial of such cause. That case was followed and approved in the case of State v. Taylor, 134 Mo. 109, 35 S.W. 92. But in the case in hand the jurors only read newspaper accounts of the homicide, and it is well settled in this State that persons who have formed opinions as to the guilt or innocence of one on trial for crime, from rumor or newspaper reports, are not for that reason disqualified to sit as jurors on the trial of the cause where they answer upon their voir dire as in this case, that they can give the defendant a fair and impartial trial. State v. Duffy, 124 Mo. 1, 27 S.W. 358; State v. Williamson, 106 Mo. 162, 17 S.W. 172; State v. Bryant, 93 Mo. 273, 6 S.W. 102. There is no pretense that either of these jurors had read the evidence in the case, or that they were otherwise disqualified to sit as jurors than as herein stated. There is no merit in this contention.

Nor do we think that there is any merit in the point that the name of Armistead Delly appeared on the list of forty qualified jurors from which defendant made his challenges, and from which the panel of twelve were to be selected to try the cause instead of Armistead Selby, which was in fact the name of the juror. In the case of the Queen v. Mellor, 27 L. J. Mag. Cas. 121, preparatory to the defendant being put upon his trial for murder, the name of A., a juror on the panel, was called, and B., another juror on the same panel, appeared and by mistake answered to the name of A. and was sworn as a juror. The prisoner was convicted. The fact that B. had answered for A. was not discovered until after the conviction, and upon a case reserved the court said: "The mistake is not a mistake of the man, but only of his name. . . . At the bottom the objection is but this, that the officer of the court, the juryman being present, called and addressed him by a wrong name. Now, it is an old and rational maxim of law, that where the party to a transaction, or the subject of a transaction, are either of them actually and corporally present, the calling of either by a wrong name is immaterial. Praesentia corporis tollit errorem nominis." It was one and the same man called by a different and wrong name. The mistake was corrected by the court as soon as discovered, and the name of Selby inserted in place of Delly. Selby had shown himself to be qualified as a juror on his voir dire, while no such man as Delly was on the panel. It is impossible to see in what way defendant could have been prejudiced by the mistake in the name, even though he was not present when the correction was made.

But two of the instructions given on behalf of the State are criticised by defendant, the third and fifth. They are as follows:

"3. He who willfully, that is, intentionally, uses upon another at some vital part, a deadly weapon, such as a loaded pistol must, in the absence of qualifying facts,...