State v. Leabo

• Decision Date: 21 June 1886
• Citation: 1 S.W. 288,89 Mo. 247
• Parties: STATE v. LEABO.
• Court: Missouri Supreme Court

1 S.W. 288

89 Mo. 247

STATE v. LEABO.

Supreme Court of Missouri.

June 21, 1886.

1. JURY — SPECIAL VENIRE — REV. ST. Mo. § 2802.

Where a motion for a special venire to summon a jury in a criminal case is not made three days before the day on which the case is set for trial, the court has discretion to make the order or not, under Rev. St. Mo. § 2802.

2. SHERIFF — CORONER — AFFIDAVIT AS EVIDENCE — REV. ST. Mo. § 3894.

Under Rev. St. Mo. § 3894, which provides that the coroner shall perform the duties of the sheriff, when it shall appear to the court that the sheriff is interested in the suit, the court is not bound to take the affidavit of a party as conclusive proof of prejudice alleged against the sheriff.

3. JURY — COMPETENCY OF JURORS — HOMICIDE — CIRCUMSTANTIAL EVIDENCE.

It is not error for the court to exclude from the jury those who declared on their voir dire that they would not convict of murder on circumstantial evidence alone

4. HOMICIDE — MURDER — EVIDENCE — EXPERTS — POST MORTEM EXAMINATION EX PARTE.

Held, that the court did not err in admitting experts to testify to the condition in which a body was found on a second post mortem examination, eight days after the first was made, though the second examination was made without notice to the opposing party.

5. SAME — TRIAL — INSTRUCTIONS TO JURY.

An instruction to the jury to find the defendant guilty if he killed the deceased "by choking and strangling her, by fixing, fastening, etc., his hand about her neck and throat, and then by throwing her, so choked and strangled, into the well, etc.," was held sufficiently explicit in specifying the means of death.

6. CRIMINAL LAW — APPEAL — VERDICT — MISCONDUCT OF PROSECUTING ATTORNEY.

A judgment will not be reversed for error when it occasioned no injury to the accused, although the prosecuting attorney commented on the verdict of a former jury.

Appeal from Bates circuit court.

The Attorney General for the State. Holcomb & Silvers, for appellant, John T. Leabo.

HENRY, C. J.

This is the second time this cause has been in this court on defendant's appeal. He was tried and convicted of murder of the first degree at the June term, 1884, of the Bates circuit court, and on appeal to this court the judgment was reversed, and the cause remanded, at the October term, 1884. The case is reported in 84 Mo. 168. The facts are detailed in the opinion delivered then, and it is not necessary to repeat them here. The evidence at the last trial was not materially different from that adduced on the former trial.

The November term, 1885, of the Bates circuit court commenced on the second day of November. Seven days thereafter both the state and the accused announced themselves ready for trial, and the court ordered the sheriff to summon 125 good and lawful men, to be and appear in court at noon the following Wednesday, eleventh day of November. On the same day that the sheriff was ordered to summon a jury the defendant filed his motion for a special venire, and that the same be summoned by the coroner, alleging that the sheriff was so prejudiced against him that he would not impartially serve the writ, and return impartial jurors. This he verified by his affidavit. The court overruled his motion, and this is assigned as error.

Section 2802 provides that either party, in a civil or criminal cause triable by jury, "shall be entitled, as of course, to an order for a special venire, on motion made therefor three days before that on which the case is set for trial." The same section gives the court discretion as to the taxation of the costs of such special jury. Regarding defendant's motion as simply one for a special venire, it was not made three days before that on which the case was set for trial, but on that day, and therefore the court had a discretion to make the order or not, with which this court cannot interfere. If it had been made in due time, the court, under section 2802, would have had no discretion, and would have erred if it had refused the application. But the motion also alleged that the sheriff was so prejudiced against the defendant that he would not impartially summon jurors in the case. Section 3894 provides that the coroner of the county "shall serve and execute all writs and precepts, and perform all other duties of the sheriff, when the sheriff shall be a party, or when it shall appear to the court out of which the process shall issue, or to the clerk thereof, in vacation, that the sheriff is interested in the suit, related to or prejudiced against any party thereto, or in anywise disqualified from acting." The question arises upon this section whether the court is bound to take the affidavit of the party as conclusive proof of the prejudice alleged against the sheriff or not? We think not. The court has some discretion in the matter, implied from the requirement that the court shall direct the process to the coroner "when it shall appear to the court" that the sheriff is prejudiced as alleged. Can we say that it did so appear to the court? No testimony was offered to prove the alleged prejudice of the sheriff. A case might be presented of an abuse of the discretion given to the court in this matter which would justify a reversal of its judgment, but such abuse does not appear in this case.

Nor did the court err in excluding from the panel of jurors those who declared on their voir dire that they would not convict one of murder on circumstantial evidence alone. Two trials of this cause, in one of which there was a hung jury, disclosed that the testimony against the accused was exclusively circumstantial; and to admit such men upon the panel would have been trifling with justice. This question was considered in State v. West, 69 Mo. 401, and we see no reason for departing from the rule there announced. There is no complaint that a panel of 40 competent jurors was not obtained.

Counsel for defendant cites Wharton's Criminal Evidence in support of the proposition that the court erred in admitting experts to testify to the condition in which the body of Mrs. Leabo was found on the second post mortem examination, held December 28th, eight days after the first was made, and without notice to defendant. Mr. Wharton says, "The practice has been to receive, for what it is worth," such testimony; but suggests that "whenever notice of such observations to the opposing interests is practicable, such notice should be given." Section 421. The manner in which the examination is made affects the credibility of the witness, but does not render his testimony incompetent. In Wharton and Stille's Medical Jurisprudence, § 1246, it is said, speaking of this character of testimony, that, "of course, when investigations are conducted by a coroner or magistrate immediately after the commission of a crime, the public action of such functionary is adequate notice to all parties that the procedure is taking place." "But when, after these preliminary inquiries are over, an examination is desired by one of the parties in interest, and when this examination relates to a subject-matter not fleeting, but continuing, then the examination is analogous to the deposition of a witness, and the policy of the law requires that it should be taken only after notice to the opposite side. Sometimes, perhaps, testimony of value, inadvertently...