State v. Ott
| Decision Date | 31 January 1872 |
| Citation | 49 Mo. 326 |
| Parties | THE STATE OF MISSOURI, Respondent, v. NAPOLEON OTT, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Phelps Circuit Court.
Ewing & Smith, with Seay & Pomeroy, for appellant.
The record does not show that the defendant was present in court when the verdict of the jury was returned into court and recorded. This should appear affirmatively by the record. (Wagn. Stat. 1103, § 15; State v. Cross, 27 Mo. 332; State v. Matthews, 20 Mo. 55.) The defendant was absent from the trial while it was going on, for six days, all the time. This was gross error. (Wagn. Stat. 1103, § 15; State v. Braumschweig, 36 Mo. 397; 31 Mo. 149; 36 Mo. 393.)
A. J. Baker, Attorney-General, for respondent.
The defendant was convicted of murder in the second degree, and sentenced to the penitentiary for the term of thirty years. Upon the trial the evidence was very conflicting, and presents nothing which would authorize us to interfere with the verdict. In the matter of instructions the court doubtless aimed to be fair, as it gave about twenty on each side, and rejected about the same number offered respectively by the prosecution and the defense. The instructions covered mainly the points in the case. But on account of their exceeding prolixity they were not as intelligible as they should have been. Where counsel insist upon offering such a multitude of verbose instructions, the obvious tendency of which is to confuse the jury rather than enlighten or guide them, it would conduce to the administration of justice for the courts to refuse them altogether, and to give of their own motion a few clear, precise and intelligent instructions covering the law in the case.
The record shows that the prisoner was present in court when the jury was impaneled, and that he entered the plea of not guilty. From that time till the close of the trial, which occupied several days, there is no evidence that he was in court at any time. Nor does it appear that he was present when the verdict was rendered.
The statute is explicit that no person indicted for felony can be tried unless he is personally present during the trial (Wagn. Stat. 1103, § 15), and this court has frequently decided that it was necessary for the record to show that the prisoner was in court during the trial and at the rendition of the verdict. (State v. Matthews, 20 Mo. 55; State v. Buckner, 25 Mo. 167; State v. Cross, 27 Mo. 332; State v. Braumschweig, 36 Mo. 397.) For this cause, then, the judgment must be reversed.
After the conviction it was suggested that the prisoner was under the age of sixteen years, and it was moved that his punishment be commuted to one year's imprisonment in the county jail, in accordance with the provisions of the statute. (Wagn. Stat. 515, § 21; State v. Gavner, 30 Mo. 44.) Thereupon the court assigned a day to hear testimony in reference to his age. When the motion came up for...
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