State v. Melton

• Decision Date: 30 April 1878
• Citation: 67 Mo. 594
• Parties: THE STATE v. MELTON, Appellant.
• Court: Missouri Supreme Court

67 Mo. 594

THE STATE

v.MELTON, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Scott Circuit Court.--HON. D. L. HAWKINS, Judge.

Marshall Arnold with Kitchens and Watkins for appellant.

J. L. Smith, Attorney-General, for the State.

1. PRACTICE, CRIMINAL: murder: defendant's right to list of jurors.

HENRY, J.

The sheriff's return to the venire facias showed that he had summoned forty good and lawful men from the body of the county of Scott to serve upon the panel to try this cause, and that a list of the panel was furnished to the defendant. He demanded that a list of the forty who had been passed upon by the court as qualified to sit as jurors on the trial of this cause should be delivered to him forty-eight hours before the trial commenced. This demand the court refused. Secs. 7 and 8, Wag. Stat., p. 1102, are the same as Secs. 7 and 8 of the statute of 1855 concerning practice in criminal cases, and in the case of the State v. Buckner, 25 Mo. 168, this court construed those sections, and held that the accused was only entitled to a list of the panel of forty jurors summoned by the sheriff. This decision was rendered in 1857, and has ever since been acquiesced in, and we are not inclined at this late day to disturb it. The object of the statute in requiring the prisoner to be furnished, forty-eight hours before the commencement of the trial, with a list of the panel, was to enable him judiciously to make his challenges. In the State v. Buckner the court seems to have taken that view of the statute, but how it assists the accused in making his challenges we cannot conceive. Every one of the forty may, on the voire dire, be found incompetent to sit as a juror in the particular case. He cannot make his peremptory challenges until forty have been found competent to sit as jurors, from whom twelve are to be selected, and it is not at all improbable, in trials for murder, that not one of the original panel will be of the panel finally selected. If the statute is intended to confer a substantial benefit upon the accused, the language employed fails to secure it, and the construction it has received makes the delivery of a list of the panel forty-eight hours before the trial an idle ceremony. Forty men are held for days in attendance upon the court, every one of whom may be found incompetent and be discharged at the expiration of that time, whereas, if examined as soon as they answer to the summons, those found incompetent could be at once discharged, and only those found competent detained. But the law is otherwise, and the point must be ruled against the appellant.

2. MURDER: delib eration.

The defendant was indicted and tried for murder in the first degree. In the third instruction for the State the court declared that if defendant willfully, premeditatedly, and of his malice aforethought shot and...