State v. Kring

• Decision Date: 20 March 1876
• Citation: 1 Mo.App. 438
• Parties: THE STATE OF MISSOURI, Respondent, v. CHARLES F. KRING, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 438

THE STATE OF MISSOURI, Respondent,

v.CHARLES F. KRING, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 20, 1876.

1. A person charged with a criminal offense, if brought into court ironed, should have the fetters removed, at least from his wrists, during arraignment and trial, and this even though he be fettered because he is considered dangerous, or to guard against an escape.

2. In a trial for murder it is not competent for the defense to prove the contents of letters written by the accused to the deceased.

3. Where the letters and papers found on the accused at the time of his arrest are brought into court, and counsel for the accused, without examining their contents, consent that they may all be offered in evidence and read to the jury by the State, it is too late, on a motion for a new trial, to object that these letters prejudiced the accused, and that counsel had no time to examine them.

4. After the conclusion of the testimony for the State, it should not be reopened. But where a witness for the State was recalled after defendant had opened, for the purpose of being asked a question which he was not permitted to answer, this is no ground for a new trial.

5. Great latitude is allowed counsel in their address to the jury, and, although the line of legitimate argument seems to have been overstepped by the counsel for the State, where the trial court has refused to interfere, the judgment will not be reversed on this ground, unless it is quite clear that the remarks were improper and calculated to prejudice the prisoner.

6. It is not error to instruct a jury that they are not bound to take as true declarations of the accused that have been offered in evidence.

APPEAL from St. Louis Criminal Court.

Reversed and remanded.McDonald, Turner & Jones, for appellant, cited: 4 Bla. Com. 323; 1 Bishop on Cr. Proc. 731, 956; Lazer's Case, 16 Howell's St. Tr. 94, 100; Rex v. Waite, 1 Leach, 28; 1 Greenl. on Ev. 102; Grant v. Thompson, 4 Conn. 203; Kinnie v. Kinnie, 9 Conn. 102; McLean v. The State, 16 Ala. 680; United States v. Sharp, 1 Pet. C. Ct. 118; State v. Mix, 15 Mo. 153; State v. Mary, 5 Mo. 81; Horkins v. The State, 11 Ga. 96; State v. Klinger, 43 Mo. 133; Commonwealth v. Eddy, 7 Gray (Mass.), 583.

J. C. Normile, Circuit Attorney, for respondent.

BAKEWELL, J., delivered the opinion of the court.

The defendant was indicted by the grand jury of the county of St. Louis for murder, in killing Dora Broemser. At the November term, 1875, of the Criminal Court he was tried and convicted of murder in the first degree. A motion for a new trial having been heard and overruled, defendant was, on February 5, 1876, sentenced to be hanged on the ensuing 24th of March. All exceptions having been saved, the cause is brought here by appeal.

The counsel for appellant have insisted that many errors were committed by the court below. We have carefully scrutinized the record, and find error in one respect alone. The other objections will be noticed in their order in the course of this opinion, but have all been found to be of an unsubstantial character, and none of the alleged errors, with that exception, have, in our opinion, any foundation at all.

1. The record sets forth that, “on the 21st of December, 1875, the cause came on for trial, defendant being present in open court, and represented by his counsel, and the circuit attorney being present, who represented the State. Defendant was brought to the bar of the court, and, having announced through his counsel his readiness for trial, the court thereupon ordered the trial to proceed. Defendant being ironed with handcuffs, or manacles, upon his hands and wrists, his counsel then and there made a motion to the court to have the same removed, which the court refused to do, overruling the motion, the court stating that an assault made by the accused on J. G. Broemser, husband of deceased, in open court, when the accused was last here, was the reason why.” Defendant's counsel then and there excepted to the ruling of the court; the trial then proceeded, a jury was impaneled, etc.

It is laid down in the ancient books of the law that, though under indictment of the highest nature, as murder or high treason, the prisoner must be brought to the bar without irons or any manner of shackles or bonds; unless there be evident danger of an escape, and then he may be secured by irons. 4 Bla. 322. In the case of Layer (16 Howell's St. Tr. 94), who was tried for high treason in 1722, a distinction was taken, and it was held that the prisoner might be brought ironed, to the bar, for arraignment, but that his shackles must be stricken off at the trial. “My lord,” said the prisoner, in the report of that cause, “I hope I shall have these chains taken off, that I may have the free use of that reason and understanding which God hath given me.” To which the Lord Chief Justice replies: “As to the chains you complain of, it must be left to those to whom the custody of you is committed to take care that you may not make your escape; when you come to your trial, then your chains may be taken off.” To which counsel for the prisoner said: “Your lordship hath limited it as an indulgence extended to him when he comes to his trial that his irons shall be taken off; but I humbly insist upon it that by law he ought not to be called upon even to plead till his fetters are off. My Lord Coke (3 Inst. 35) is clearly of that opinion in his Pleas of the Crown; and it is admitted on all hands that, when he comes to be tried, his shackles must be off; and upon debate it was so determined in Cranburne's case. 13 Howell, 222. The only reason for putting of irons at all on a prisoner is to keep him in safe custody; and the reason why they are taken off in the course of proceedings against him in a court of justice seems to be that his mind should not be disturbed by any uneasiness his body or limbs should be under.” And Ketelby, for the prisoner, says: “He is entitled to have his chains off before he pleads, in point of law;” and he cites abundant authority. Lord Chief Justice said: “No doubt, when he comes upon his trial, the authority is that he is not to be in vinculis during his trial, but should be so far free that he should have the use of his reason and all advantages to clear his innocence. Here he is only called on to plead by advice of his counsel; he is not to be tried now; when he comes to be tried, if he makes that complaint, the court will take care that he shall be in a condition proper to make his defense; but when he is only called on to plead, and his counsel by him to advise him what to plead, why are his chains to be taken off this minute, and to be put on again the next?”

In Cranburne's case (A. D. 1696, 13 Howell), when the defendant was brought to the bar in irons (and it differed from the case of Layer in this, that the prisoner was called upon to plead and was tried at the same time), the Lord Chief Justice (Holt) exclaims: “Look you, keeper; you should take off the prisoners' irons when they are at the bar, for they should stand at their ease when they are tried.”

And in Waite's case (1 Leach, 43), the prisoner, at the time of his arraignment, desired that his irons might be taken off; but the court informed him that they had no authority for that purpose until the jury were charged to try him. He accordingly pleaded not guilty; and, being put upon his trial, the court immediately ordered his fetters to be knocked off.

And Hawkins says (2 P. C., ch. 28): “Every person, at the time of his arraignment, ought to be used with all the humanity and gentleness that is consistent with the nature of the thing, and under no other terror and uneasiness than what proceeds from a sense of his guilt and the misfortune of his present circumstances; and, therefore, ought not to be brought to the bar in a contumelious manner, as with hands tied together, or any other mark of ignominy or reproach, nor even with fetters on his feet, unless there be some danger of a rescue or escape.”

And though fetters be allowed on the feet, in case of danger of an escape, all the authorities say that his hands must not be bound, as was done to the prisoner in the case at bar. Coke says so, quoting Bracton and Fleta (2 Inst. 315).

Bracton's language is: “ Cum autem captus coram justiciariis producendus fuerit, produci non debet ligatis manibus, quamvis aliquando compedibus propter periculum evasionis.” He shall not be brought before the justices with his hands bound, though sometimes, on account of danger of escape, his feet are fettered.

And Fleta, speaking of prisoners when brought up for trial, says: “ Non producantur ligati, ne videantur respondere coacti.”

So that the rule is unchanging, and at least as old as Magna Charta.

It is not pretended in this case that there was danger of an escape. Had this danger existed, however, we are of opinion that some other means must have been taken to prevent it, and that it would have been error, even then, to keep the prisoner's hands fettered in the presence of the jury during the trial of the case.

It is said in excuse that the prisoner, when last there--by which is probably meant when last in court--had made an assault upon a by-stander. The by-stander assaulted on the former occasion is named in the record, and was not a person whose attendance at the trial was required as counsel, witness, juryman, or officer of the court. It does not appear what interval of days, weeks, or months existed between this former assault and the day of trial; nor that there was any ground to suppose that such an assault would be renewed. But, be that as it may, it was no sufficient reason for compelling the prisoner to stand his trial for his life with gyves upon his wrists and his hands bound together. Officers of the court could have been placed around him, if he was considered dangerous to by-standers; or he might have been placed in an inclosed space within the bar of the court,...