State v. Orrick
| Decision Date | 30 June 1891 |
| Parties | The State v. Orrick, Appellant |
| Court | Missouri Supreme Court |
Appeal from Iron Circuit Court. -- Hon. J. L. Thomas, Judge.
Affirmed.
J. B Walker and W. S. Anthony for appellant.
(1) The act of the legislature (Acts, 1887, p. 153) creating the Piedmont branch of the Wayne circuit court is void because in conflict with article 4, section 54, of the constitution of Missouri. First. The act comes within the rule that "no local or special law shall be passed unless notice of the intention to apply therefor shall be published in the locality where the matter or thing to be affected may be situated, * * * and the notice shall be recited in the act according to its tenor," in that there was no notice. Const., art. 4, sec. 54. Second. The act is local and special, comes within the constitutional inhibition, for that it pertains to "regulating the affairs of counties, * * * prescribing the powersand duties of officers of counties, * * * and * * * regulating the practice and jurisdiction" of the Wayne county circuit court. Const., art. 4, sec. 53; State ex rel. v. Hermann, 75 Mo. 340; Ewing v Hoblitzell, 85 Mo. 64; State ex rel. v. County Court, 89 Mo. 237. (2) The part of the act of 1889 (Acts, p. 67, sec. 52), attaching Wayne county to twenty-sixth judicial circuit did not go into effect until November 1, 1889. (3) The court erred in receiving oral evidence that Wm. M. Gill, who signed the indictment as foreman, was the same person as Monroe Gill, appointed by the court, foreman of the grand jury. What a court does is known by its record; its doings and proceedings cannot be established by parol testimony; the record of a court imports absolute verity. Midlin v. Platte Co., 8 Mo. 235; Milan v. Pemberton, 12 Mo. 598; Dennison v. St Louis Co., 33 Mo. 168; Maupin v. Franklin Co., 67 Mo. 327. (4) Upon defendant's motion suggesting the diminution of the record in that the copy of the indictment in the transcript was certified as signed "M. M. Sheets," defendant alleging that the original was signed "N. M. Sheets," the court should have made an order directing the proper clerk to send a correct transcript. Laporte v. State, 6 Mo. 208; State v. Haws, 98 Mo. 188; Henderson v. Henderson, 55 Mo. 534. (6) The court should not have admitted counsel hired by friends of the deceased to assist in the prosecution. (7) Testimony showing that prior to the homicide the father of deceased was shot, and that defendant was suspected of it, should have been excluded. It did not tend to prove this homicide, yet it prejudiced the jury, and might have caused them to take less evidence to convict. State v. Turner, 76 Mo. 350; State v. Reavis, 71 Mo. 419; State v. Reed, 85 Mo. 194. (8) The evidence of witnesses Gibson and Chance that they communicated to defendant the threats of deceased, and his charge that defendant had shot his father, was not competent and not of the res gestae. State v. Umfried, 76 Mo. 404. (9) The court should have granted a new trial on account of the separation of the jury. First. In the light of the state's own testimony (see testimony of juror Jones and second testimony of the sheriff) there was a separation, and the juror was neither in the custody of an officer nor "securely locked up." Second. Nor was there such an "imperious necessity" for that separation as to justify it. If the juror was able to come down stairs when he got ready, he was able to when the others did. And, whether he was able to get up and go with the others when they took the walk or not, the sheriff should, having left him, have so left him in the custody of an officer or securely locked up. State v. Murray, 91 Mo. 95; State v. Collins, 81 Mo. 652; R. S. 1879, secs. 1910, 1966. (10) The court should not have instructed the jury that they might find defendant guilty if he was an aider and abettor, in the absence of evidence, either direct or by implication, of a conspiracy to murder, and connection therewith of defendant. Greenl. Ev. [12 Ed.] sec. 111; State v. Walker 98 Mo. 95. Instructions, must be predicated upon the evidence. Budd v. Hoffmeister, 52 Mo. 297; Givens v. Van Studdiford, 4 Mo.App. 499; Raysdon v. Trumbo, 52 Mo. 35; White v. Chaney, 20 Mo.App. 389. It is error to instruct a jury upon an hypothesis not warranted by the evidence. Bank v. Overall, 16 Mo.App. 116; Skyles v. Bollman, 85 Mo. 35. (11) There was not sufficient evidence upon which to base a verdict; and the verdict was, in view of the fact that the evidence was entirely circumstantial, and by no means "inconsistent with every reasonable hypothesis save that of guilt," clearly the result of passion, prejudice and partiality. State v. Glahn, 97 Mo. 679; State v. Thomas, 78 Mo. 342; State v. Zorn, 71 Mo. 415; State v. Musick, 71 Mo. 410; State v. Cook, 58 Mo. 548. Mere proof of the homicide and that defendant had made threats against deceased will not support a conviction of murder of the first degree. State v. Glahn, 97 Mo. 679.
John M. Wood, Attorney General, for the State.
(1) The act of 1887 providing for holding of circuit courts at Piedmont was not unconstitutional. It is neither a special nor a local law. 3 Am. & Eng. Ency. of Law, 697; State v. Miller, 100 Mo. 447; State v. Walton, 69 Mo. 556; State v. Daniels, 66 Mo. 192; State v. County Court, 50 Mo. 317. (2) The act of 1889 attaching Wayne county to the twenty-sixth judicial circuit took effect within ninety days after the adjournment of the legislature. R. S. 1889, sec. 16, p. 149. (3) Where the foreman's whole name is in the record, a signature by initials for his christian name is sufficient. 1 Bish. Crim. Proc., sec. 698; State v. Taggart, 38 Me. 298; Studhill v. State, 7 Ga. 2; Com. v. Gleason, 110 Mass. 66; State v. Tinney, 26 La. Ann. 460; State v. Powell, 24 Tex. 135. (4) It appears that the juror Jones was sick and unable to go out with the other members of the jury, and that the sheriff left him locked in a room to himself. It is only where it appears that the jurors have been tampered with, that this court will reverse on account of a separation. State v. Bell, 70 Mo. 633. The separation was unavoidable, and in no sense prejudicial, and was not such as to have entitled the defendant to a new trial. State v. Washburn, 91 Mo. 571. (5) The evidence fully justified the jury in finding the defendant guilty as charged, and this court will not in any case interfere on the ground that the verdict is against the evidence, unless it appears that the jury acted from prejudice or passion. State v. Lane, 93 Mo. 547; State v. Cook, 58 Mo. 548; State v. Musick, 71 Mo. 401, State v. Warner, 74 Mo. 38; State v. Hammond, 77 Mo. 169.
Defendant was indicted in the circuit court of Wayne county, at the November adjourned term of said court held at Piedmont in February, 1889, for the murder of Hiram Antis. A change of venue was afterwards granted to Iron county circuit court, in which defendant was tried and convicted of murder in the first degree, from which he has appealed.
I. It is insisted, in the first place, that the act of 1887, page 153, which provides for holding terms of the circuit court at Piedmont, is a local or special act, and the notice, required in such cases, not having been given, is unconstitutional and void, and the indictment found by the grand jury in the court held by authority thereof was a nullity. The important question here raised has been, at this term, settled by the decision of division 1, in the case of the State ex rel. Hughlett v. Hughes, 104 Mo. 459, 16 S.W. 489. In that case the act of 1889, page 68, establishing terms of the circuit court of Montgomery county, at Montgomery City, was questioned also, as being in conflict with various provisions of the state constitution. It was held that the act in question did not embrace more than one subject, whose title was clearly expressed in the words, "An act providing for the times and places of holding courts in Montgomery county," and that said act was not a local or special law. This decision fully settles the objection to the constitutionality of the act in question.
II. Under an act approved May 30, 1889 (Acts 1889, p. 67), Wayne county was detached from the twenty-third and attached to the twenty-sixth judicial circuit of the state, and the time for holding court, at Piedmont, changed to the fourth Monday in September. On the twenty-sixth day of September, 1889, a term of court was held at Piedmont by the judge of the twenty-sixth circuit. At this term defendant was arraigned, and called upon to plead. This he refused to do for the reason, as given, that the act attaching Wayne county to the twenty-sixth judicial circuit did not take effect until the first day of November, 1889. The court ordered the clerk to enter a plea of not guilty.
Section 16 of the act declaratory of the Revised Statutes (Acts 1889, p. 149) provides that, "The Revised Statutes, as declared by this act, shall take effect and go into operation from and after the first day of November, 1889, except such acts passed by the present general assembly, and incorporated therein, as shall by their provisions take effect at a different time; acts changing the time of holding courts shall take effect in ninety days after the adjournment of this session of the legislature; and until the Revised Statutes shall go into effect, as herein provided, the existing statutes shall continue in force." The act in question changes the territorial boundaries of the twenty-third and twenty-sixth circuits, and changes the times of holding courts therein. Both purposes are accomplished by the single act. This act did change the time of holding the courts in these circuits, and the whole act, and not a part only, went into effect under ...
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