State v. Mann

• Decision Date: 31 October 1884
• Citation: 83 Mo. 589
• Parties: THE STATE v. MANN, Appellant.
• Court: Missouri Supreme Court

83 Mo. 589

THE STATE

v.MANN, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Newton Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

M. E. Benton for appellant.

(1) The court should have sustained the motion to quash the indictment because not returned into court by the grand jury. R. S. sec. 1797. (2) The testimony of the witness, Stevens, should have been withdrawn on application therefor, it having been given on misinformation, or if once admitted should have been held to be the testimony of said witness. R. S. sec. 1886. (3) The court erred in refusing instructions as asked by defendant. State v. Talbott, 73 Mo. 352; Wills' Circum Ev. pp. 47 and 77; 1 Greenlf. Ev., p. 243. (4) The trial court erred in refusing to permit the defendant's counsel to ask the jurors on their voir dire if they belonged to any association for the prosecution of crime. 3 Wharton's C. L., secs. 3010, 3011, 3012; 1 Cowen 432; 13 N. H. 536; 6 Cush. 177. (5) Defendant's motion for a new trial should have been sustained on the ground that it appears that some of the jury had decided the case before the testimony was presented. (6) The testimony of McDonald should not have been excluded; it tended to show that one of the state's witnesses had a grievance against deceased, made threats against him and had an opportunity to kill him.

D. H. McIntyre, Attorney General, for the state.

(1) The denial of defendant's application for a continuance is not made a ground for a new trial and hence this court will not regard it. State v. Preston, 77 Mo. 294. (2) The court did not err in permitting the state to introduce the witness, Stevens, for the purpose of contradicting the affidavit read in evidence by defendant. (3) It was incompetent for defendant to show that others had malice against the deceased and had threatened to kill him. State v. Davis, 77 N. C. 483; State v. Jones, 80 N. C. 415; Whar. Cr. Ev., sec. 225. (4) The instructions given for the state properly declared the law. State v. Alexander, 66 Mo. 158: State v. Holme, 54 Mo. 153; State v. Mitchell, 64 Mo. 191; State v. Talbott, 73 Mo. 347; State v. Kotovsky, 74 Mo. 247; State v. Curtis, 70 Mo. 594; State v. Ellis, 76 Mo. 207. (5) The record entry was sufficient as to the return of the indictment into court by the grand jury. Besides objection to the constitution of the grand jury comes too late after verdict. State v. Smallwood, 68 Mo. 192. (6) There is nothing to show that the jury disobeyed the charge of the court or that any juror made up his mind before the case was finally submitted for their consideration. The affidavit in support of the motion for new trial, as to the prejudice of a juror, is not a part of the bill of exceptions. There is no record that it was ever filed in support of the motion, or that it was ever brought to the attention of the trial court.

HENRY, C. J.

The defendant was indicted in the circuit court of McDonald county at the February term, 1884, for the murder of one A. W. Chenowith, and the cause was taken to Newton county by change of venue. At the August term, 1884, he was tried and found guilty of murder in the first degree, and from the judgment has appealed to this court. He made an application for a continuance, based upon the absence of witnesses whose testimony he deemed material, and the prosecuting attorney, agreeing that the defendant's affidavit, wherein it stated what the witnesses would testify to, might be read as their testimony, the application was overruled, and it is sufficient to say, as to any alleged error committed by the court in that ruling that it is not one of the grounds relied upon in the motion for a new trial.

In his application for a change of venue, he stated that the inhabitants of the counties of McDonald and Newton were so prejudiced against him, that he could not have a fair trial in either of those counties. For what reason the court sent the cause to Newton does not appear, but no exceptions were taken to the order sending it to Newton, nor was the court's attention called to this alleged error at any stage of the proceedings, and it is too late to raise the question in this court.

Another alleged error is, that when the indictment was returned to the court, it does not appear from the record that any of the grand jury were present except their foreman. The statute, section 1797, provides that: “Indictments found and presentments made by a grand jury, shall be presented by their foreman, in their presence to the court.” The record entry is as follows: “And afterwards, to-wit: on the 6th day of February, 1884, * * * the grand jury heretofore empaneled, sworn and charged, return into open court, by their foreman, the indictment.” This objection comes too late, even if it is not so clear, from the entry, that the whole panel was present when the foreman returned the indictment to the court. State v. Smallwood, 68 Mo. 192. Clerks should be more particular in making such entries. It would have been just as easy to say: “The grand jury heretofore empanneled, sworn and charged appeared in court, and, by their foreman, return into court, etc.” This we take to be the meaning of the entry.

The defendant's application for a continuance was based upon the absence of witnesses, among others named in the affidavit, of one Stevens. That portion of the affidavit containing a statement of what he would testify to, was read by defendant to the jury as his testimony, and when the state, at the proper stage of the trial, called said Stevens as a witness, the defendant asked the court to exclude the statement read by him from his affidavit as the testimony of said Stevens, alleging that he fully believed that Stevens would so testify, but, after Stevens' appearance in court had learned that the statement was not what he would testify to. The court overruled the motion and Stevens' testimony was different from, and contradictory of, that which it was alleged in defendant's affidavit it would be. The action of the court in that regard is complained of. To allow such practice, as that insisted upon by defendant's counsel, would open a door to intolerable abuses in criminal trials. With the consent of the state he introduced, as the evidence of a witness, what he swore that the witness would testify to, if present. The testimony was material, and when the state called that very witness to the stand defendant asked to withdraw his testimony. He might, upon equally as good grounds, have asked to withdraw from the jury the testimony of any other witnesses, whom, he learned would be contradicted by witnesses introduced by the state. He may, if he desires, recall a witness to explain his testimony, or to correct any error into which he may have fallen, but he cannot have the evidence withdrawn from the jury.

When the defendant, in a criminal trial, reads, as the evidence of an absent witness, his statement of what the evidence of that witness will be, the state may contradict his testimony, or impeach the witness, as if he were present. Sec. 1886, R. S. There is, therefore, no reason why that person himself should be excluded as a witness, when offered by the state. The state would have the right to introduce any person who had testified for the accused, to contradict himself if such a culprit could be found among the defendant's witnesses, and no reason occurs to us for holding otherwise, in regard to one whose testimony, as an absent witness, has been introduced.

Nor did the court err in excluding testimony of threats made against the deceased by another party, one of the state's witnesses, who, also, had a grudge against deceased. State v. Davis, 77 N. C. 483; State v. Jones, 80 N. C. 415. In the cases above cited, the defendants offered to prove, not to impeach a witness, but as testimony in chief, that another person had malice against the accused and had threatened his life. The court excluded it as irrelevant. In the case at bar, one Matney, a witness for the state, was asked by defendant's counsel, on cross-examination, if he had not threatened the life of Chenowith, and he answered that he had not; and defendant offered to prove that he had, but the evidence was excluded. Mr. Greenleaf in his work on Evidence, 1 vol., sec. 449, says: “It is a well-settled rule, that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony.” It would, of course, have been competent to prove that the witness killed Chenowith, but, as was observed by the Supreme Court of North Carolina in the State v. Davis, supra: “This could only have been done by proof connecting Peck with the fact, that is with the perpetration of some deed entering into the crime itself.” Mr. Wharton in his work on Criminal Evidence, sec. 225 (8 Ed.) says that: “On an indictment for murder, the admissions of other persons that they killed the deceased, or committed the crime in controversy, are not evidence; and evidence of threats by other persons is inadmissible.” State v. Johnson, 30 La. Ann. 921; Walker v. State, 6 Tex. App. 576; People v. Murphy, 45 Cal. 137.

With the motion for a new trial appears the affidavit of Jno. McBrian to the effect that one of the jurors who tried the cause, said to affiant: “They had better hang the rascal (meaning defendant) than to be delaying time over him,” and “that he had lost or would lose fifty dollars on account of it.” There is no indorsement on the affidavit, nor any thing in the record showing that it was ever filed in the cause, or that the attention of the trial court was ever called to it; and the eleventh ground relied upon for a new trial, is the only one which relates to that subject, and that is as follows: “The court failed to admonish the jury not to converse among themselves on any subject connected with the trial, or to form or express an...