State v. Pitts

• Decision Date: 31 January 1875
• Citation: 58 Mo. 556
• Parties: STATE OF MISSOURI, Respondent, v. THOMAS PITTS, Appellant.
• Court: Missouri Supreme Court

58 Mo. 556

STATE OF MISSOURI, Respondent,

v.THOMAS PITTS, Appellant.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Polk Circuit Court.

W. P. Johnson, for Appellant.

John A. Hockaday, Att'y Gen'l, for Respondent.

I. The State was not bound to elect, on which count it would proceed to trial. (State vs. Porter, 26 Mo., 201.)

II. Drunkenness is an aggravation of a crime rather than a mitigation. (14 Mo., 502; 21 Mo., 466; 27 Mo., 332.)

III. It was not necessary for the verdict to show upon which count the defendant was found guilty, a general verdict is good. (State vs. McCue, 39 Mo., 112.)

SHERWOOD, Judge, delivered the opinion of the cour

The defendant was indicted in the Hickory Circuit Court. The indictment contained three counts which were based, respectively, on the 29th, 32nd and 33rd sections of Wagn. Stat., ch. 42, pp. 449, 450. On his application, the venue was changed to Polk County, where, upon a trial had, he was duly convicted, and his punishment assessed at two years in the penitentiary. For a reversal of the judgment, there have been assigned various errors which will be briefly noticed. The record in this case sufficiently discloses, that the indictment was “found and presented in open court.” The defendant not being in custody, or held on recognizance, the clerk was expressly prohibited by law (Wagn. Stat., 1086, § 1) from making any entry on the minutes or records of the court in reference thereto. The clerk therefore could only indorse the date of its filing on the indictment in the ordinary and usual way, and refer to it in the transcript as one of the indictments found and presented at that term by the grand jury.

Although the opening order of the Hickory Circuit Court does not show that the Hon. B. H. Emerson was judge of the court, yet it shows his presence together with that of the other officers of the court, and a subsequent entry, made prior to the removal of the cause, shows with distinctness that he was judge of that court. The record shows also, that the defendant was duly arraigned, and pleaded not guilty in the Polk Circuit Court, prior to the impaneling of the jury. This is shown by the judgment of conviction, so that the objection, on the score of there being no arraignment of the accused, is not true in point of fact.

The defendant had no “right secured to him by the law” to compel the State to elect, upon which count of the indictment, she would proceed at the trial. (State vs. Porter, 26 Mo., 201.)

There was no error in overruling the motion of defendant to have the jury impaneled from the regular panel of jurors, which had been summoned for the term under the provisions of the act concerning jurors. (Sess. Acts, 1873, p. 46.) A portion of the regular panel were then sitting as a jury in the trial of another cause, and it was perfectly competent after exhausting the remainder of the regular panel, for the court to order the jury to be completed from the by-standers, under the terms of section six of the act referred to. And it was a matter of no moment, that the regular panel for the term was not selected by the County Court at least thirty days prior to the commencement of the term at which the prisoner was tried, in accordance with the above mentioned act. That act can only be regarded as merely directory. To rule that it is mandatory, would be to hold, that, if by any accident the County Court should not meet and select jurors in the time and manner provided by the act, the wheels of justice would have...