State v. Perno
| Decision Date | 11 December 1929 |
| Docket Number | 29930 |
| Citation | 23 S.W.2d 87 |
| Parties | STATE v. PERNO |
| Court | Missouri Supreme Court |
J. O Patterson, of Springfield, for appellant.
Stratton Shartell, Atty. Gen., and G. C. Weatherby, Asst. Atty. Gen for the State.
DAVIS and HENWOOD, CC., concur.
By an information filed in the circuit court of Greene county Lee Perno was charged with murder in the first degree, alleged to have been committed by him in that county on June 17, 1928 by shooting with a shotgun and killing one Norman Standard. On February 27, 1929, he was tried in said court and convicted of murder in the second degree, the jury assessing his punishment at 30 years' imprisonment in the penitentiary. After unavailing motion for new trial, he was duly sentenced in accordance with the verdict, and appeals.
There is but little dispute about the essential facts, except on the question of self-defense, which defense rests alone upon defendant's testimony. Defendant and deceased were both negroes, the former being about 40 and deceased about 52 years of age. The witnesses to the shooting and the events leading up to it were also of that race, and all apparently resided in the same vicinity in Springfield, where the killing occurred.
It appears from the state's evidence that on Sunday evening, June 17, 1928, after dark, defendant and some others were at the home of George Blackburn, sitting on the floor, playing a game of cards called cooncan, when Standard entered and demanded of defendant that he (defendant) take back a bad name he had called him, in response to which defendant told deceased to go on away, 'something like that.' Deceased left, but very soon returned, and without warning or provocation approached defendant from the rear and struck him with a butcher knife, inflicting a severe cut on the back of defendant's head, which bled profusely. Defendant left the house, and in company with Dave Greer went to Greer's house, which was near, to bathe the wound and stop the bleeding. On the way Greer suggested that they stop at the house of a Mrs. Franklin, which they were passing, but defendant declined, saying he did not want to bother Aunt Harriet and Mrs. Rush. They proceeded to Greer's house. While Greer was getting some water, defendant picked up Greer's shotgun, which was standing in one of the rooms, and left the house.
In the meantime deceased had returned to his own home, a small one-room shack near Blackburn's, and he and two friends, Layton and Farris, were sitting there talking, when defendant's voice was heard outside the door. Defendant called to deceased: 'Come here and see what you have done to old Perno's head.' Layton opened the door, and immediately defendant shot through the open door at deceased and killed him. Perno returned to Greer's house with the gun, said, 'He is dead; I got him;' put the gun back, and left the house. From 30 to 35 minutes elapsed between the assault on defendant at Blackburn's house and the shooting of deceased.
Defendant testified that deceased came to the door of Blackburn's house with a butcher knife in his hand and said to him (defendant): 'You called me a dirty name; if you don't take it back, I am going to kill you.' To which defendant replied: 'Go on away, Dog -- we call him Dog for short, a nickname -- I don't want to have anything to do with you'; that he didn't pay much attention to deceased, didn't think he was really mad; and that deceased stabbed him in the head, and he (defendant) then 'scrambled around some way and got out of the door and went down to Dave Greer's house.' He said that, while Greer was procuring water and some one was looking for some gunpowder to stop the bleeding, he left the house, intending to go home, and, seeing the shotgun, picked it up and took it with him for protection, as he had to pass deceased's house on his way home, and feared deceased might attack him again; that as he passed deceased's house the latter called, 'Perno,' but closed the door; and that he (defendant) approached the door and said, 'Look here, what you have done to poor Lee; you near about killed me,' or words to that effect; that when the door opened again he saw deceased in the room advancing toward him, taking a knife out from under his coat as he advanced; that he called to deceased to stop, but that he kept on coming, and he (defendant), thinking his life was in danger, shot deceased.
It is shown by the evidence that prior to the time of this trouble defendant and deceased had apparently been good friends. It is also shown that, when the coroner came to take charge of the body, he found a butcher knife gripped in deceased's right hand. Aside from defendant's testimony, it is not shown that it was necessary for defendant to pass deceased's house in going home.
In his motion for new trial defendant alleges error in three particulars, viz.: That the jury panel from which the trial jury was selected was not legally drawn; that the jurors were allowed to separate during the trial; and that the court should have given an instruction on manslaughter.
1. Defendant's contention that the jury panel was not legally drawn is based upon the contention that, after the exhaustion of the regular panel upon voir dire examination, the trial judge prepared a list of names of bystanders, selected arbitrarily and without drawing from the wheel or box containing the names of qualified jurors.
The selection of jurors in counties of the population of Greene is governed by sections 6640-6646, R. S. 1919. Section 6646 provides that, when a jury for the trial of a cause cannot be made up from the regular panel, the judge of the court before whom the cause is pending may make out and deliver to the proper officers a list of jurors sufficient to complete the panel. Specifically, defendant's claim seems to be that such additional names should be taken from the jury box or wheel, referred to in preceding sections, and that this was not done. It is not necessary to determine that question, for the reason that there is no showing that the names were not so selected.
Defendant introduced in support of his motion a court order reciting that a jury cannot be made up for the trial of the cause from the regular panel, and directing the sheriff to summon the men therein named to complete the panel. But he makes no showing as to how the names were selected, except the bare statement in his brief that they were selected arbitrarily from bystanders. Absent evidence tending to show the contrary, we will presume that the court followed the law in making up the list. Moreover, statutes relative to the impaneling of juries are regarded as directory only, and, if not followed, it will not be ground for reversal, in the absence of circumstances from which it can be inferred that defendant was prejudiced thereby. State v. Riddle, 179 Mo. 287, 294, 78 S.W. 606, and cases cited. It may be stated further that defendant's objection, made for the first time in his motion for new trial, comes too late. State v. Jones, 61 Mo. 232; State v. Collins, 86 Mo. 245, 250. There is no merit in this assignment.
2. Defendant's claim that there was prejudicial error, in that the jurors were permitted to separate during the trial is equally without merit. In support of that contention in the motion for new trial defendant offered and introduced as his only evidence the testimony of R. E. Hodge, the deputy sheriff who had been placed in charge of the jury, from whose uncontradicted testimony it appears that the facts relative to the alleged separation of the jury were these: On a morning during the trial, shortly after court convened, and while court was in session and the jurors were all in the jury box, one of the jurors became suddenly ill and felt an immediate need to vomit. While, as stated, court was in session with the trial judge on the bench, the judge was at the moment 'disposing of some preliminary matters, getting ready to proceed with that trial.' The juror's need to leave the jury box was pressing, as shown by the fact that he began vomiting before he could reach the lavatory. Hodge, without waiting to attract the court's attention to get permission, took the sick juror to a lavatory two or three steps from the courtroom door, and as soon as the juror had finished vomiting returned him to the jury box. The whole time the sick juror was thus absent from the jury box, in which the other jurors meantime remained seated, was not over three minutes. While thus separated from his fellow jurors the sick man was constantly in the presence of the deputy, Hodge, who did not mention the case to him, nor he to Hodge, and no one else communicated with him in any manner. It thus affirmatively appears that the juror was not tampeed with, nor...
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