State v. McCarron

• Decision Date: 31 October 1872
• Citation: 51 Mo. 27
• Parties: THE STATE OF MISSOURI, Respondent, v. JAMES MCCARRON, Appellant.
• Court: Missouri Supreme Court

51 Mo. 27

THE STATE OF MISSOURI, Respondent,

v.JAMES MCCARRON, Appellant.

Supreme Court of Missouri.

October Term, 1872.

Appeal from St. Louis Criminal Court.

L. F. Dinning and Chas. Coular, for appellant.

WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted jointly with others in the Circuit Court of Washington county for the killing of Samuel Herrington, and on his application a change of venue was awarded to St. Louis county.

Upon a trial in the Criminal Court, he was convicted of murder in the second degree, and sentenced to ten years' imprisonment in the penitentiary. Two points are mainly relied on to reverse the judgment of the Criminal Court: first, that it committed error in impaneling the jury; and, secondly, that it refused to admit competent and legal testimony offered by the defendant. It appears from the record that there were forty men summoned and returned as jurors to try the cause, twelve of whom were called, sworn and examined as to their qualifications and fitness. No objection was made by the State or the defendant as to their competency, and the court then required the parties to make their peremptory challenges before any more jurors were called.

To this ruling of the court the defendant objected, claiming that he was entitled to have a full panel of forty qualified jurors before he could be compelled to make his peremptory challenges, but the objection was overruled and an exception taken and saved.

The statute provides that there shall be summoned and returned in every criminal cause a number of qualified jurors equal to the number of peremptory challenges, and twelve in addition, and no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained. (Wagn. Stat. 1102, § 7.)

The court surely misconstrued the law. The section is plain; there must be a full panel of competent jurors qualified and obtained before either party can be required to make peremptory challenges. In this case the number was forty, as the defendant was entitled to challenge twenty peremptorily, and the State eight; and till the whole forty men were called, passed and qualified as jurors, the court could not require either party to exercise the right of peremptory challenging.

The remaining question to be considered is the action of the court in refusing to allow Mrs. Fatchett to testify for the defendant. Her husband, John R. Fatchett, was indicted with the defendant for the...