State v. Matthews

• Decision Date: 31 October 1885
• Parties: THE STATE v. MATTHEWS, Appellant.
• Court: Missouri Supreme Court

88 Mo. 121

THE STATE

v.MATTHEWS, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Washington Circuit Court.--HON. JAMES D. FOX, Judge.

AFFIRMED.

Dinning & Byrnes for appellant.

(1) The judgment should be reversed because the jurors were not properly summoned. (2) The court should have compelled the state to elect on which count it would stand. (3) The judgment should be reversed because of the improper manner in which the witness, Gillam, was cross-examined by the prosecuting attorney.

B. G. Boone, Attorney-General, for the state.

(1) The court will only review the matters of exception preserved in the motion for a new trial. State v. Dunn, 73 Mo. 586; State v. McCray, 74 Mo. 303; State v. Preston, 77 Mo. 294. (2) It was not improper for the prosecuting attorney to question the witness, Gillam, on cross-examination, as to what his testimony had been before the grand jury, in this case. Ros. Crim. Ev. (7 Ed.) sec. 141; 1 Greenl. on Ev. (14 Ed.) sec. 462; 1 Whar. Law of Ev. (2 Ed.) sec. 68, and authorities and cases cited; Best's Ev., sec. 474. (3) The instructions presented every phase of the case as shown by the evidence. State v. Moore, 61 Mo. 276; State v. Branstetter, 65 Mo. 149; State v. Johnson, 76 Mo. 127. (4) Unless defendant was prejudiced, it was immaterial whether the panel from which the trial jury was selected was summoned by the sheriff or not. This court has repeatedly held statutes in respect to the empaneling of juries in criminal cases directory. Defendant was not prejudiced through a lack of compliance with the statutory provision, and this court will not interfere. State v. Pitts, 58 Mo. 556; State v. Breen, 59 Mo. 415; State v. Knight, 61 Mo. 373; State v. Ward, 74 Mo. 256. (5) Not only by our own court, but generally elsewhere, are statutory provisions relating to drawing and summoning juries treated as directory. Irregularities and informalities in such selecting and summoning, constitute no ground for challenging the array. If jurors are qualified individually, the defendant is not prejudiced. Thomp. & Mer. on Juries, sec. 146; Mitchell v. State, 43 Tex. 517; Perry v. State, 9 Wis. 19; Rafe v. State, 30 Ga. 60; State v. Baldwin, 2 Hun, 379; Com. v. Walsh, 124 Mass. 32; State v. Hascall, 6 N. H. 352; State v. Gut, 6 Minn. 341.

RAY, J.

The defendant, who is a colored man, was indicted for a felonious assault on one Henry Johnson, a white man, and upon arraignment and plea of not guilty was tried, convicted and sentenced to imprisonment in the state penitentiary for a term of three years. The difficulty between them arose over a game of cards for a bottle of bitters at the store of one Gillam, in Washington county, Missouri. Johnson received a number of cuts from a knife, a severe and dangerous one in the abdomen, from the effects of which after some months he recovered. There were present at the time, the defendant and said Johnson, and one White and said Gillam. Of these Johnson and White were introduced for the state, and Gillam and the defendant in the defendant's behalf. It is perhaps sufficient for the present to say of the evidence that it was very conflicting, and as it appears in the bill of exceptions, apparently pretty evenly balanced, making the case one for the jury, who are the judges of the credibility of the witnesses and of the value of their testimony, as the same is delivered in their presence. The indictment contains three counts: The first is drawn upon section 1262, Revised Statutes, formerly section 29, General Statutes, and charges a felonious assault with intent to kill on purpose and of malice aforethought with a deadly weapon. The second is drawn upon section 1263, Revised Statutes, formerly section 32, General Statutes, and charges a felonious assault. The third is drawn upon section 1264, Revised Statutes, formerly section 33, General Statutes, and charges a felonious maiming, wounding, etc. At the close of the evidence the defendant moved the court to compel the state to elect on which of said counts it would go to the jury, but this the court refused to do and defendant excepted; but as this exception was not assigned as error and again brought to the attention of the trial court in the motion for new trial, it must, under the rulings of this court, be deemed to have been thereby waived.

We will first consider a question properly and duly preserved, and arising on the record, and which is urged here for a reversal, which is that a part of the panel from which the trial jury was selected were not summoned by the sheriff or other authorized officer, but by one Stone, who was not a deputy, and who, acting at the request of the sheriff, sent him seven men to serve on the jury. Three or four of this seven composed a part of the panel of twenty-four from which the twelve trial jurors were chosen, and two of the seven were part of the panel of twelve that tried the case. This mode of selecting the jury was irregular, and, as we think, highly objectionable, yet the ruling of this court has uniformly been that the statutory method of summoning, drawing, and empaneling juries is directory, and not mandatory, and that if the jurors are individually qualified, under their examination in that behalf before the court, to serve as jurors, and there is no showing of prejudice to the defendant, a verdict and judgment had, will not be disturbed solely for such irregularity and informality in the mode and method of selecting the jury. State v. Pitts, 58 Mo. 556; State v. Breen, 59 Mo. 415; State v. Knight, 61 Mo. 373; State v. Ward, 74 Mo. 256.

A very earnest protest is made by counsel for defendant against what they call the oppressive and “bulldozing” manner of the prosecuting attorney in his cross-examination of the witness, Gillam, but this is matter which cannot well be...