State v. Pagels

• Decision Date: 20 June 1887
• Citation: 4 S.W. 931,92 Mo. 300
• Parties: The State v. Pagels, Appellant
• Court: Missouri Supreme Court

4 S.W. 931

92 Mo. 300

The State v. Pagels, Appellant

Supreme Court of Missouri

June 20, 1887

Appeal from St. Louis Criminal Court. -- Hon. J. C. Normile, Judge.

Affirmed.

George Bullock and J. R. Kinealy for appellant.

(1) The court erred in overruling defendant's motion for a continuance. Const. of U.S. amend. 14, sec. 1; Const. of Mo art. 2, sec. 22; State v. Berkley, ante, p. 41; State v. Jennings, 81 Mo. 193, dissenting opinion of Judge Sherwood. (2) Defendant's challenges to jurors Lang and Ryan should have been sustained. Maloy v. Duden, 25 F. 673; R. S. U. S. (1878), title 30, sec. 2165; Const. of U.S. amend. 14, sec. 1; Const. of U.S. amend. 6; R. S., ch 43, sec. 2777; Bank of Missouri v. Anderson, 1 Mo 244; Shumaker v. State, 5 Wis. 324; Seal v. State, 13 S. & M. 286. (3) It was an abuse of discretion to refuse to allow the official stenographer to report the case. (4) The alleged dying declarations of the deceased were improperly received in evidence. Warren v. Nichols, 6 Metc. 261, 264; Commonwealth v. Richards, 18 Pick. 434; Marsh v. Jones, 21 Vt. 373, 380. (5) Witness Emmett should not have been allowed to testify. R. S., sec. 1802, p. 304; State v. Roy, 83 Mo. 268; Perry v. People, 14 Ill. 496. (6) The certified copies of the records offered by defendant should have been admitted in evidence. R. S., sec. 2285; 1 Greenl. on Evid., secs. 483, 484 and 496, and cas. cit.; Karr v. Jackson, 28 Mo. 316; State v. Lynde, 77 Me. 561: Barney v. Schneider, 76 U.S. 248. (7) The action of the court in taking part in the examination of Dr. Lutz, and his questions to Dr. Bauduy, and his remarks at the time were erroneous. Rickerson v. State, 1 S.E. 178; Cronkhite v. Dickerson, 51 Mich. 177; Mullinur v. Bronson, 114 Ill. 510, 514; Lycan v. People, 107 Ill. 423, 428. (8) The court should have checked and rebuked the circuit attorney for his remarks during his closing argument to the jury. State v. Leabo, 89 Mo. 247; Strauss v. Railroad, 86 Mo. 421; State v. Barham, 82 Mo. 67; State v. Mahly, 68 Mo. 315; State v. Lee, 66 Mo. 165. (9) The instruction as to character was incomplete. State v. Ross, 29 Mo. 32. (10) In the instruction as to credibility of witnesses, the court improperly used the following words, namely: "This is applicable alike to the medical expert testimony, as to the testimony of the ordinary witnesses." State v. Ross, 29 Mo. 32; People v. Lyons, 49 Mich. 42; R. S., sec. 1918; Jones v. Jones, 57 Mo. 138; State v. Smith, 53 Mo. 267. (11) The instruction as to the hypothetical case should not have been given, and being given, the word, "whenever," should not have been used, and the word, "material," should have been used between the words, "supposes" and "facts." State v. Ross, 29 Mo. 32; State v. Ostrander, 30 Mo. 13; Dacey v. People, 116 Ill. 555; Iron Mountain Bank v. Murdock, 62 Mo. 70; State v. Brosius, 39 Mo. 534. (12) In the instruction as to the proof necessary to entitle defendant to a verdict of not guilty, by reason of his insanity, the words, "reasonable satisfaction," therein used should have been defined. Digby v. American Insurance Co., 3 Mo.App. 603; State v. Sharp, 71 Mo. 218; Wiser v. Chesley, 53 Mo. 547; Edelmann v. St. Louis Transfer Co., 3 Mo.App. 503. (13) The instruction as to partial and general insanity should not have been given. State v. Laurie, 1 Mo.App. 371; Clark v. Kitchen, 52 Mo. 316. (14) The instruction asked for by the defendant should have been given. Panton v. People, 114 Ill. 505; Spurzheim on Insanity, p. 50. (15) The court erred in defining insanity, and also in instructing that it must be such as to render the person suffering therefrom incapable of distinguishing between right and wrong in reference to the particular act charged. Panton v. People, 114 Ill. 505; Spurzheim on Insanity, 50; Winslow on the Brain and Mind, ch. 3.

B. G. Boone, Attorney General, A. C. Clover and C. O. Bishop for the state.

(1) The application for a continuance was properly overruled. The consent of the circuit attorney fully warranted the refusal of the court to grant the continuance. R. S., sec. 1886. The constitutional provision allowing the accused compulsory process for his witnesses has evident reference to only such process as the state can exercise within her own borders. State v. Butler, 67 Mo. 59, 62. The affidavits of counsel showed no diligence in preparation for trial, although more than five months had elapsed since their appointment, and two continuances had already been granted. And no reasons or special facts were set forth why a longer period was asked or required. State v. Jewell, 90 Mo. 467. (2) Jerry Lang was not incompetent, being over twenty-one years of age, and having taken out his first papers more than one year and less than five years before the trial. State v. France, 76 Mo. 681. Juror Ryan was not disqualified by reason of a prejudice against a bogus plea of insanity, he having declared on his voir dire that he could try the prisoner fairly upon his plea. State v. Baber, 74 Mo. 296-7; State v. Burns, 85 Mo. 47. (3) The refusal of the court to order its stenographer to report the evidence is no ground for reversal. The stenographer is for the convenience and assistance of the court and prosecuting attorney to report such matter as directed by them. Sess. Acts, 1881, p. 106, sec. 4. (4) The dying declarations of deceased were properly received in evidence. It was made most apparent by the introductory testimony of the physician, not only that deceased was in articulo mortis, but had wholly abandoned all hope of recovery, and was under a well-founded apprehension of immediate and impending dissolution. State v. Simon, 50 Mo. 370; State v. McCannon, 51 Mo. 160; State v. Draper, 70 Mo. 546. It was sufficient that the substance of the declarations should be given in evidence, the witness stating that after the lapse of a year it was impossible to repeat the exact language. Wharton's Crim. Evid. [9 Ed.] sec. 301; State v. Able, 65 Mo. 371-373. And the witness was strictly confined to such declarations only as related to the immediate circumstances of the shooting. (5) Officer Emmett was a competent witness on behalf of the state, notwithstanding his name may not have been endorsed upon the indictment. R. S., sec. 1082; State v. Nugent, 71 Mo. 136; State v. Griffin, 87 Mo. 608; State v. O'Day, 89 Mo. 561. This point must be saved by a motion to quash. State v. Roy, 83 Mo. 268. (6) The papers offered in evidence by appellant as "exemplifications" are not such as are contemplated by the statute he invokes. R. S., sec. 2285. There was no exception saved to the conclusion of the act of the legislature of Illinois, nor of the ordinances of the city of St. Louis. It is now too late to complain. State v. Ray, 53 Mo. 345. (7) The court had the undoubted right to examine the witnesses, Lutz and Bauduy, for its own information upon matters relevant to the issue, and necessary to present the case properly before the jury in instructions. Wharton's Crim. Evid. [9 Ed.] sec. 452. (8) Appellant saved no exception at the time to the argument of the circuit attorney, of which he now complains. State v. Forsythe, 89 Mo. 667. (9) The instructions given by the court are unobjectionable, either in form or substance. (a) That touching insanity as a defence to a criminal prosecution was technically exact and declared the doctrine as now firmly established by a series of well-considered decisions. State v. Redemeier, 71 Mo. 173, and cas. cit. (b) That touching the credibility of witnesses was in the approved form, and it was eminently proper to tell the jury that the expert testimony was subject to the same tests as that which was not expert. State v. Redemeier, 71 Mo. 174; Wharton's Crim. Evid. [9 Ed.] sec. 420; Lawson's Expert Evid., p. 240, rule 44. (c) That touching the hypothetical case was correct. "The duty of determining whether the facts assumed in the hypothetical case put by the state, as well as in that put by defendant, had or had not been proved, rested with the jury." State v. Baber, 74 Mo. 297. (d) That touching evidence of defendant's good character was technically correct. State v. Kilgore, 70 Mo. 546. (e) There was no error in using the term, "reasonable satisfaction," without defining it. This is not a technical legal phrase, and jurors will be presumed to understand their vernacular tongue. This exact expression was approved in State v. Redemeier, 71 Mo. 174-5. (10) The instruction asked by defendant was properly refused. The law in this state does not recognize an "uncontrollable impulse" as an excuse for crime. State v. Erb, 74 Mo. 202-3.

OPINION

Sherwood, J.

On the evening of November 12, 1885, in the city of St. Louis, Jerry Pagels, the defendant, with a double-barreled shot-gun, shot and killed Samuel Kohn. He was indicted for the crime at the January term, 1886. Was arraigned and pleaded not guilty March 22, 1886. At the May term following, the cause was continued, and at the same term, June 7, on the representation of the defendant that he was without counsel, the court appointed Messrs. George Bullock and Jas. R. Kinealy, as his attorneys. At the July and October terms, the cause was continued by general order, and was finally set for trial December 1, 1886; but, on representation of defendant's counsel that the defendant was not ready for trial, the trial was further postponed until the thirteenth of that month, when it began, resulting in a verdict of guilty and sentence accordingly. Whereupon, an appeal was granted the defendant, accompanied by what, in capital cases, is its necessary incident, a stay of execution until his appeal could be heard by this court. The right of appeal in a capital case is necessarily coincident with that of a stay of execution until that...