State v. Mitchell

• Decision Date: 20 November 1906
• Citation: 199 Mo. 105,97 S.W. 561
• Parties: STATE v. MITCHELL.
• Court: Missouri Supreme Court

97 S.W. 561

199 Mo. 105

STATE v. MITCHELL.

Supreme Court of Missouri. Division No. 2.

November 20, 1906.

CRIMINAL LAW — APPEAL — RECORD—SWEARING OF JURY—SUFFICIENCY.

The record on appeal in a criminal case which recites merely that 12 persons, naming them, were selected as a jury out of a panel of qualified jurors, and that the jury returned into court the verdict "we the jury," etc., does not show that the jury was sworn as required by Rev. St. 1899, § 2627, and a conviction based thereon cannot stand.

Appeal from Circuit Court, Lincoln County; H. W. Johnson, Judge.

Lillard Mitchell was convicted of an attempt to rape, and appeals. Reversed, and remanded for new trial.

Chas. Martin and E. B. Woolfolk, for appellant. Attorney General and N. T. Gentry, for the State.

GANTT, J.

On an information filed by the prosecuting attorney of Lincoln county on September 22, 1903, the defendant was arraigned and tried at the April term, 1904, of the circuit court of said county, and convicted of an attempt to rape.

After motions for a new trial and in arrest of judgment had been duly filed, heard, and overruled, he appealed to this court. The sole error upon which a reversal is sought, is that the record upon its face discloses that the jury which tried and convicted defendant was not sworn to try the cause and a true verdict render according to the law and the evidence. When the prosecuting attorney discovered that the record entry of the impaneling of the jury and the trial of the cause failed to show that the jury was sworn to try the cause, he gave notice to the defendant, and filed a motion for a nunc pro tunc entry showing the jury was sworn, but the circuit court, after hearing the evidence and examining the minutes of the judge and circuit clerk, refused to change the record. The error, if any, is one appearing upon the face of the record. The record recites the appearance of the state by the prosecuting attorney and of the defendant in his own proper person and by counsel, and that the following 12 were selected as a jury out of a panel of 40 qualified jurors, to wit: (naming them) 12 good and lawful men summoned from the body of Lincoln county, and both parties announce ready for trial, and thereupon the trial proceeds and the jury having heard the evidence, instructions of the court, and argument of counsel, retire to their room to consider their verdict, are conducted into court by the sheriff and in the presence of the defendant, return into court the following verdict: "We the jury find the defendant guilty of attempt to rape and we assess his punishment at three years in the state penitentiary." In Zapf v. State, 35 Fla. 210, 17 South. 225, the record recited that "the jury was impaneled to try the cause," but the Supreme Court held that it was fairly defective because the fact that the jury was sworn did not appear in the record and further that the statement that the jury was impaneled was not sufficient. That the word "impaneled" did not imply that the jury was sworn. Citing Lyman v. People. 7 Ill. App. 345; State v. Potter, 18 Conn. 166. In...