State v. Klinger

• Decision Date: 31 March 1870
• Parties: STATE OF MISSOURI, Defendant in Error, v. MAX KLINGER, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 224

STATE OF MISSOURI, Defendant in Error,

v.MAX KLINGER, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1870.

Error to St. Louis Criminal Court.

W. H. H. Russell, for plaintiff in error, urged among others the following points:

I. If the defendant was entitled to a panel of forty qualified jurors, he could not waive that right. (Basie v. Ambrose, 28 Mo. 46; State v. Mansfield, 51 Mo. 475; 1 Chit. 401; 11 Ga. 337; 3 Chit. Pr. 50, 51.)

II. It was the duty of the marshal to summon forty qualified and competent jurors, and furnish defendant with a list of their names forty-eight hours before trial.

III. The following question was asked: “When the defendant has been undeniably subject to fits of epilepsy, should he not have the benefit of every reasonable doubt that might arise as to his sanity?” Was this question proper? (See Ray's Juris., §§ 436, 437; Wharton & Stille, §§ 142, 149.) The opinion of medical experts, and of laymen who are familiar with the facts in the case, upon the question of sanity or insanity of the prisoner, were admissible as evidence in the case at bar. (Elwell on Malpractice and Med. Ev. 275, 294; Ray, 607; and see also Doe v. Ryan, 5 Black, Ind., 217; Gibson v. Gibson, 9 Yerg. 329; 2 Ired., N. C., 78; State v. Clark, 12 Ohio, 483; Lester v. Pittsford, 7 Verm. 158; Morse v. Crawford, 19 Verm. 499; 3 Wash. C. C. 580.)

IV. The counsel for the defendant had the undoubted right to read the opinion of the Supreme Court upon the question of insanity, and the weight of certain evidence as to the issue in the case. It was not done to mislead the jury, and could not mislead them. There was no impropriety in the counsel's reading the provisions of the statute touching the custody of insane persons under criminal sentence. (Gen. Stat. 1865, pp. 311, 343, 345.)

Chas. P. Johnson, Circuit Attorney, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted in the St. Louis Criminal Court for the killing of one Henry Wider. Upon trial he was found guilty by the jury of murder in the first degree, and in accordance with the verdict he was sentenced to be hung.

There is no dispute about the commission of the crime, and if the defendant was sane and possessed of capacity which rendered him responsible at the time the act was perpetrated, there is nothing to extenuate it, and it was a most brutal and atrocious murder. The whole defense was based upon the insanity of the accused.

The case was here upon a previous conviction, and the judgment of the lower court was reversed for reasons given in the opinion (43 Mo. 127); and on a re-trial the law was laid down in conformity with the rulings of this court. Several irregularities are now complained of, and exceptions are also taken to the action of the court in excluding testimony. These we will proceed to notice in their order.

It is insisted, as one ground of error, that a full panel of jurors was not summoned, and that a list of the same was not furnished to the defendant forty-eight hours before the trial, as provided by the statute. This objection was not noticed or urged upon the trial, and it was only brought to the attention of the court in a motion for a new trial. The record shows that twelve good and lawful men were duly elected, tried, and sworn to try the cause, and it seems they were mutually satisfactory to both parties.

The statute enacts that the defendant in every indictment for a criminal offense shall be entitled to a peremptory challenge of jurors as follows: “First, if the offense charged is punishable with death, or by imprisonment in penitentiary not less than for life, to the number of twenty, and no more. Second, if the offense be punishable by like imprisonment not less than a specified number of years, and no limit to the duration of such imprisonment is declared, to the number of twelve, and no more.” (2 Wagn. Stat. 1102, § 4.) In capital cases the State is entitled to eight peremptory challenges, and a full panel thereof would consist of forty jurors, and it is said that there were not that number. But the trial progressed without any objection, and it is not shown that the defendant was deprived of the privilege of making the full number of statutory challenges; and it nowhere appears that he suffered the least prejudice from the course that was pursued. And when such is the case this court will not reverse. (State v. Hays, 23 Mo. 287.)

As to the point that the list was not delivered to the prisoner forty-eight hours before the trial, we see no error in the ruling of the court in refusing the motion on that ground. The delivery of the list is an absolute and positive requirement only when the prisoner demands it.

The eighth section of the chapter in the statute above referred to provides that a list of the jurors summoned shall be delivered to the defendant in the cases specified in the first two subdivisions of the fourth section at least forty-eight hours before the trial, and in other cases before a jury is sworn, if such list be required. It is simply a privilege which the statute extends to the accused for his benefit, and if he does not make the demand or require the list he is presumed to have waived it.

In the course of the examination of one of the medical witnesses as an expert, the counsel for the defense asked this question: “When the defendant has been undeniably subject to fits of epilepsy, should he not have the benefit of every reasonable doubt that might arise as to his sanity?” This question was objected to and the objection sustained, and an exception was taken to the ruling of the court.

The action of the court was so obviously correct and proper that it requires no process of reasoning to justify it. The question proposed substituted the witness in place of the court and jury, and made him the judge of the weight and effect of the evidence.

The defense then called two witnesses, J. H. Conn and Groshon. It seems that Conn was foreman of the jury when the defendant was previously tried, and he was asked his opinion as to the sanity of the defendant at the time of the homicide. The witness was not called as an expert, and the attorney for the defense stated that he desired to prove by him his opinion based upon the facts in the case and the witness's knowledge of the defendant. It is not shown that the witness knew anything in regard to the condition of the defendant, except as he learned it from his connection with the previous trial. The testimony was ruled out.

Substantially the same question was put to Groshon, who was on the grand jury after the indictment was found, and who stated that the grand jury visited the jail and called the defendant out of his cell, and that he asked him some questions and felt of his head; and that, as he took some interest in him, he went back afterward to...