State v. Lewis
| Decision Date | 23 March 1904 |
| Citation | 79 S.W. 671,181 Mo. 235 |
| Parties | THE STATE v. FRED LEWIS, alias FRED COLLINS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. Wm. A. Davidson, Judge.
Affirmed.
Jesse M. Owen, W. L. Cole and Jesse H. Schaper for appellant.
(1) The trial court erred in overruling, over defendant's objection, defendant's motion for a continuance. The purpose of the law is to afford the accused an equal chance with the accuser, not only upon the trial of the cause, but also as to the means to prepare for the trial. This right of the accused is substantive; if this right is denied, the right of a fair and impartial trial is also denied. The fact that the court assigned defendant counsel and thereupon by its action separated defendant from his counsel until the moment the trial is begun, amounts to this -- that the court placed defendant upon the trial of his life without the assistance of counsel and opportunity to prepare his defense. It will not do to say that the ground assigned by the motion is not a ground given by the statute for a continuance, for the law presupposes that the trial court, before putting the defendant upon his trial, will not only assign him counsel in name, but also afford him and his counsel a reasonable opportunity to consult and "have process to compel the attendance of witnesses in his behalf." (2) The trial court erred in refusing to sustain appellant's challenge of juror Hensler, for cause. The juror's opinion was that "defendant was guilty, if he was there," and the substance was that the juror believed that defendant was guilty of the murder of Schumacher, if he, the defendant, was present at the time and place of the homicide. (3) The record shows that this juror started in the trial of this case with the presumption that the defendant was guilty of the charge instead of according to the defendant the presumption of innocence attending and protecting him throughout the trial until overcome by the evidence; the presence of the defendant at the place of the homicide was not an issue in the case since the fact of his presence was not a controverted fact. Therefore this juror could not give the defendant a fair and impartial trial. Sec. 22, art. 2, Constitution; sec. 2616, R S. 1899. (4) The trial court erred in admitting illegal and improper testimony offered by the State. (a) The admission of this testimony is contrary to the first fundamental rule of the law of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue. Greenleaf on Evidence (14 Ed.), secs. 50, 51. (b) The admission of this testimony was contrary to the exceptions to the above rule admitting testimony of one criminal act as evidence of another, in this -- that in the case at bar there was no connection shown to have existed in the mind of the defendant at the time of the commission of the burglary of the Bank of Union on December 26, 1902, linking that act with the commission of the homicide of Schumacher on January 24, 1903. Schaffner v. Com., 72 Pa. St. 60; 1 Bishop's New Criminal Procedure, sec. 1120; People v. Molineux, 16 N. Y. Crim. 120; People v. Shea, 147 N.Y. 78; Commonwealth v. Jackson, 132 Mass. 16. (c) The admission of this testimony is contrary to the law which gives the accused the right "to demand the nature and cause of the accusation." Sec. 22, art. 2, Constitution. (d) The admission of this testimony bade the jury to find that the defendant's character was bad, although that question was not raised by the defendant himself or any witness who testified for him. (e) The admission of all this testimony detailing the facts and circumstances attending the burglary of the Bank of Union was carried out to the most minute detail -- the counting of the stolen currency, the gold and silver, and exhibition of the same before the jury -- and tended to prove a separate and independent crime with which the defendant was not charged. (f) The admission of this testimony was not stricken out or modified by any instruction of the court declaring its legal effect or for what purpose the same might be considered by the jury. (5) The information in this case does not charge a conspiracy between Rudolph and defendant Collins to kill and murder Schumacher; therefore, the admission of declarations made by Rudolph relating to the homicide of Schumacher, and subsequent thereto, was no evidence of the guilt of this defendant, but its effect was to prejudice the minds of the jurors. State v. Kennedy, 177 Mo. 98; State v. Walker, 98 Mo. 95; State v. McGee, 81 Iowa 17. (6) The trial court erred in refusing defendant's request to instruct the jury on all questions of law applicable to the case. (a) Because there was evidence to warrant an instruction on murder in the second degree. The failure to so instruct was error. (b) Because there was evidence to warrant the giving of an instruction on manslaughter. The failure to do so was error. (c) There was no allegation of a conspiracy between the codefendants contained in the information, although declarations of codefendant Rudolph made subsequent to the homicide were admitted in evidence, and these declarations were not admissible. Therefore, the failure of the court to direct the jury to disregard the same was error. State v. Kennedy, supra.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State; James Booth of counsel.
(1) The sheriff's affidavit stated that when the demand was made upon him by defendant's counsel to return the defendant to the jail at Union, he, the sheriff, stated that he "would have defendant in jail at Union, Missouri, by Wednesday last, if the court consented, and that said attorneys could then consult with the defendant as fully as they desired," and defendant's counsel, Schaper replied that it was not necessary; that they, the attorneys for defendant, would have plenty of time, as a jury would have to be summoned. This statement of the sheriff is undenied. In fact, so far as the record is concerned, it stands admitted. These facts, considered with the general doctrine that the granting of a continuance is a matter resting largely in the discretion of the trial court, and that nothing but the abuse of that discretion warrants interference by appellate courts, show that there was no reversible error in the ruling upon the application for a continuance. State v. Parker, 106 Mo. 217; State v. Turlington, 102 Mo. 642; State v. Bailey, 94 Mo. 311; State v. Williams, 170 Mo. 204; State v. Fox, 79 Mo. 109; State v. Banks, 118 Mo. 117; State v. Riney, 137 Mo. 102; State v. Dewitt, 152 Mo. 76; State v. Webster, 152 Mo. 89; State v. Craft, 164 Mo. 631. (2) It is no ground of challenge that a juror has formed an opinion from rumor or from newspaper reports. State v. Williamson, 106 Mo. 162. One who has formed an impression or opinion as to the guilt or innocence of the accused on newspaper reports, which it would require evidence to remove, is a competent juror if such opinion would readily yield to the evidence in the case. State v. Elkins, 101 Mo. 344; State v. Cunningham, 100 Mo. 382; State v. Gartrell, 171 Mo. 489; State v. Hunt, 141 Mo. 630; State v. Bronstine, 147 Mo. 530. Whether a juror is competent is for the trial court to determine, and such determination will not be disturbed on appeal, except in cases of manifest error. State v. Brooks, 92 Mo. 542; State v. Williamson, 106 Mo. 162. (3) The testimony with reference to the burglary of the bank at Union on the 26th of December was competent for the purpose of showing the motive of the defendant in committing the homicide. State v. Clough, 7 Neb. 320; State v. Witzingerode, 9 Ore. 153; State v. Johnson, 95 Mo. 623; State v. Dellmer, 124 Mo. 426; Wharton's Criminal Evidence (9 Ed.), 48; Underhill on Evidence, sec. 68; Abbott's Trial of Criminal Cases, sec. 198. The evidence in question was admissible at the time and under the circumstances admitted for the purpose of showing the identity of the defendant as well as to prove motive. (4) Evidence of the declarations and admissions of an accomplice in crime may be admitted against the principal, or the declarations admitted as against the accomplice. If they were acting in conjunction and aiding and abetting each other in the perpetration of the crime, or if they had been guilty of a former offense and were endeavoring each to jointly conceal the fruits of the former crime, and to avoid arrest, such circumstances would render the declaration of one admissible against the other, when spoken in reference to the commission of the crime charged. And what is said with reference to the declarations of an accomplice, may also be said with reference to the acts and conduct of the respective parties. The case of State v. Kennedy, 75 S.W. 979, cited by defendant, is in support of our contention in this respect. This evidence was admissible without there being a charge contained in the information that a conspiracy existed between the defendant and Rudolph. State v. Melrose, 98 Mo. 594; State v. Hildebrand, 105 Mo. 318; State v. McGraw, 87 Mo. 161; State v. Daubert, 42 Mo. 239; State v. Ross, 29 Mo. 32. These circumstances alone are sufficient to authorize the introduction of declarations of the conduct of Rudolph against the defendant. State v. Walker, 98 Mo. 95; State v. Dunklin, 64 Mo. 262. (5) Defendant has for the first time raised the question of no affidavit in his brief, having not only failed to move to quash the information, but also failed to set up in either the motion for a new trial or in arrest of judgment, the specific charge that the information was not properly verified by the prosecuting officer or sworn to by some material witness. It,...
To continue reading
Request your trial