State v. Logan

• Decision Date: 15 March 1939
• Docket Number: 36385
• Parties: The State v. Anderson Logan, Appellant
• Court: Missouri Supreme Court

126 S.W.2d 256

344 Mo. 351

The State v. Anderson Logan, Appellant

No. 36385

Supreme Court of Missouri

March 15, 1939

Appeal from Callaway Circuit Court; Hon. W. C. Hughes Special Judge.

Affirmed.

Roy McKittrick, Attorney General, and W. J. Burke Assistant Attorney General, for respondent.

(1) The manner in which the jury was selected to try the cause was not in violation of the constitutional rights of the defendant as vouchsafed to him under the Fourteenth Amendment to the Constitution of the United States. Secs. 8754, 8755 8756, 8775, R. S. 1929; State v. Wheeler, 2 S.W.2d 777, 318 Mo. 1173; State v. Hancock, 7 S.W.2d 275, 320 Mo. 254; State v. Anderson Logan, 111 S.W.2d 110. (2) The court did not err in overruling defendant's challenges to the jurors Arthur Bezler and Homer Dillard, who were challenged on account of testifying that they were or had been members of the Ku Klux Klan. State v. Griffith, 279 S.W. 135, 311 Mo. 630; State v. Craft, 253 S.W. 224, 299 Mo. 343. (3) The court did not err in admitting in evidence the dying declaration of the deceased, Angela Logan. State v. Strawther, 116 S.W.2d 133; State v. Davis, 84 S.W.2d 930, 337 Mo. 411. (4) The court did not err in admitting the transcript of the evidence of the witness Mariah Fisher, mother of the deceased, at the former trial of this cause. State v. Lloyd, 87 S.W.2d 418, 337 Mo. 990; State v. Pierson, 85 S.W.2d 48, 337 Mo. 475.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Anderson Logan was convicted of the first degree murder of Angela Logan, his wife. This is his second appeal. The facts of the instant record, as did the facts upon the former appeal (see 341 Mo. 1164, 1166, 111 S.W.2d 110), sufficiently established appellant's guilt. They will be further developed in the consideration of the issues presented. The punishment was fixed at life imprisonment. Appellant has not filed a brief.

Appellant is a negro. After the members of the jury panel had been examined for cause and the State had made its peremptory challenges, appellant filed a motion to quash the panel of the remaining twenty-four jurors. His motion for new trial assigns error in the overruling of said motion on the ground his rights under the Fourteenth Amendment to the Constitution of the United States had been violated; more particularly in that he "did not have a chance to have any negroes on the jury of twelve men" to be selected to try the case. The reason assigned for error is insufficient in law. The legal issue involved is one of discrimination against and not one of a chance to have negroes on the jury. Upon the first appeal the cause was remanded because of discrimination against negroes for jury service; but Ellison, J., speaking to the instant issue, said (341 Mo. l. c. 1172(3), 111 S.W.2d l. c. 114(4)): "It is not the law that the appellant was absolutely entitled to have negroes on the jury that tried him, or even the panel from which that jury was drawn. It may happen that no negroes (or members of any other particular class of our citizens) will be on the regular panel for a given term of court, or on the special venire for a particular case. If that occur in due course and good faith because of the ratio of white to negro population, or because of actual disqualifications, pure chance or the like, it is within the law; but if the defendant be deprived by design of the chance of having negroes on the jury which is to try him, the Federal Constitution may be invoked. The fact that no negroes were drawn in the particular case is not conclusive against the State; and the fact that negroes might not have been drawn in due course is not conclusive against the defendant."

The panel of thirty was selected from forty-one talesmen. Six of the forty-one were negroes; of which number four disqualified for cause. Appellant's real complaint is against the exercise by the State of its six statutory peremptory challenges in striking the names of the two negroes from the jury list and thereby depriving appellant of an opportunity to have negroes on the trial jury. The record contains no showing of discrimination.

Appellant's motion was in effect a challenge to the array. These should be timely filed. [State v. Taylor, 134 Mo. 109, 143(i), 35 S.W. 92, 99(i); and consult State v. Powers, 136 Mo. 194, 200, 37 S.W. 936.] A defendant should not be permitted, after participating in the voir dire examination of the jury panel, to take the chance that the State's exercise of its right of peremptory challenge will result favorably to defendant and then, if disappointed, first present objections which have their foundation in the array.

Appellant also challenged two jurors for cause on the sole ground they stated they had at one time been members of the Ku Klux Klan. We follow the ruling of State v. Griffith, 311 Mo. 630, 638, 279 S.W. 135, 137(1, 2), in holding there was no error in overruling said challenges for cause. The record in this case, as in that case, also affirmatively discloses no legal grounds for sustaining a challenge for cause with respect to said jurors. Consult also State v. Lowry, 321 Mo. 870, 878(I), 12 S.W.2d 469, 471(2); State v. Gartland, 304 Mo. 87, 98(II), 263 S.W. 165, 168(2).

Appellant next questions the admissibility of the dying declaration of his wife, stating it was obtained by a police officer for the purpose of being used against him and was not a voluntary statement on her part. The statement was to the effect that appellant shot her with a shotgun. The fact that a dying declaration was obtained by or made to an officer does not render it inadmissible. One of the primary purposes of securing such a statement is to have it available for use against an offender. These are not legal reasons for its exclusion. The instant record affirmatively establishes that the statement was voluntary. In fact, her statement reads: "I make this statement knowing I am mortally wounded . . ."; and there was other testimony that she knew she was going to die; that she wanted to make a statement and thereafter the officer took the statement. Appellant's wife had not been living with him and had made arrangements to institute an action for divorce. Appellant desired that she return to his home; he accosted her on the streets of Columbia; wanted to talk with her and, after she refused, shot her with a shotgun while she was within a few feet of him, inflicting a large gunshot wound in the upper abdomen. This occurred at two P. M. When she was examined at the hospital shortly thereafter the physician found her in a dying condition. She died about seven P. M. The statement was admissible. [State v. Custer, 336 Mo. 514, 517(1), 80 S.W.2d 170, 177(1-3); State v. Davis, 337 Mo. 411, 414(I), 84 S.W.2d 930, 931 (1-3); State v. Strawther, 342 Mo. 618, 116 Mo. (2d) 133, 136(2, 3).]

Maria Fisher, mother of deceased and a witness for the State, died during the interval between the first and second trials. Appellant's counsel did not cross-examine Mrs. Fisher at the first trial, and, setting up said failure to cross-examine, he now assigns error in the admission of the transcript of her testimony, citing Section 22 of Article 2, Mo. Const., 15 Mo. Stat. Ann., p. 346, providing that ". . . the accused shall have the right . . . to meet the witnesses against him face to face . . ." The right thus accorded an accused is a personal privilege which he may waive. [State v. Wagner, 78 Mo. 644, 648.] Practically all jurisdictions admit testimony given at a former trial upon a proper showing covering the absence of the witness, and the cases appear to be substantially in accord that the constitutional requirements is fulfilled if the accused was present, was confronted by the witness and might have had counsel or have cross-examined if he so desired. [Baldwin v. United States, 5 F.2d 133, 134 (certiorari denied, 269 U.S. 552, 70 L.Ed. 407, 46 S.Ct. 17); Annotations, 79 A. L. R. 1395(b), 15 A. L. R. 514(b), 25 L. R. A. (N. S.) 871; 14 Am. Jur., p. 895, secs. 187, 188; 8 R. C. L., p. 216, sec. 212; 16 C. J., p. 839, sec. 2116.] Although we fail to find the precise issue ruled in this jurisdiction, our statement of the general rule covers the instant issue. State v. Pierson, 337 Mo. 475, 485(a), 85 S.W.2d 48, 53(5) (stating: "From an early day (see State v. McO'Blenis, 24 Mo. 402), we have held that the constitutional right of confrontation is not denied where a witness is dead at the time of trial and the testimony of such witness, given and duly preserved at a former hearing in the same case, at which the defendant was present and was accorded the right to cross-examine, is read to the jury"); State v. Barnes, 274 Mo. 625, 629, 204 S.W. 267, 268(2); State v. Lloyd, 337 Mo. 990, 994, 87 S.W.2d 418, 420(3).

Appellant makes two attacks against the State's Instruction No. 1, submitting murder in the first degree. Said instruction, insofar as deemed essential to a ruling of the issues, reads:

"'Murder in the first degree' is the felonious and wrongful killing of a human being wilfully, deliberately, and premeditatedly and with malice aforethought 'Wilfully' . . . means intentionally, not accidentally. 'Deliberately' . . . means an intent to kill executed . . . in a cool state of the blood in furtherance of a formed design to gratify a feeling of revenge, or to accomplish some other unlawful purpose . . .

"'Premeditatedly' means thought of beforehand . . . 'Malice' means that condition of the mind which prompts a person to intentionally take the life of another without just cause, justification or excuse, and signifies a state of disposition that shows a heart . . . fatally bent on mischief. 'Malice aforethought' means malice with premeditation. 'Feloniously'...