State v. Powers
| Decision Date | 01 December 1896 |
| Citation | 37 S.W. 936,136 Mo. 194 |
| Parties | The State v. Powers, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.
Reversed and remanded.
Charles T. Noland, Ben Clark, and William Fitzgerald for appellant.
(1) The court erred in overruling defendant's application for a continuance. (2) The court erred in overruling defendant's challenge to the array, and his motion to quash the panel, and his objection to the jury being sworn inasmuch as the sheriff was interested in the suit, and from the record and knowledge within the breast of the court it should have "appeared" to the court that the sheriff was prejudiced against the defendant and should not have been allowed to skip about on the list and select at his own will what men out of the one hundred and fifty summoned should be called for voir dire examination. Rev. Stat. 1889 sec. 8188; 1 Thompson on Trials, sec> 32; Thompson & Merriam on Juries, sec. 132; Murfree on Sheriffs, secs. 386-388; State v. Smith, 90 Mo. 37; State v. Leabo, 89 Mo. 247; State v. Degonia, 69 Mo. 485, Dissenting Opinion of Judges Sherwood and Henry; State v. Holm, 54 Mo. 153; State v. Newhouse, 29 La. Ann. 824; People v. Tweed, 50 How. Pr. 286; Webster v. Smith, 13 Mo.App. 323; Munshower v. Patton, 10 Serg. & R. 334; Woods v. Rowan, 5 Johns. 133; Cowgill v. Wooden, 2 Blackf. 332; King v. Sheppard, 1 Leach C. C. 119; Rex v. Johnson, 2 Strange Rep. 1000. (3) The indictment fails to charge that the alleged false testimony of John L. Powers, in the case of State v. Henry Troll, was material to the determination of the issues in that case, and therefore the indictment is insufficient to support a conviction for perjury, and the court erred in overruling defendant's motion in arrest.
R. F. Walker, attorney general, Morton Jourdan, assistant attorney general, and C. O. Bishop for the state.
(1) The indictment was sufficient. (2) No exceptions were saved to the rulings on the instructions and hence same can not be reviewed on appeal. (3) The same is true of the overruling of the application for the continuance. See State v. Stevenson, 91 Mo. 94. (4) The challenge to the array of the jurors was made too late. State v. Clark, 121 Mo. 500.
The defendant was indicted in the St. Louis criminal court at the January term, 1895, for perjury alleged to have been committed on the trial of Henry Troll who was charged with corrupt practices at the election in 1894, at which said Troll was a candidate for sheriff of the city of St. Louis.
I. The indictment is sufficient. It distinctly charges that "upon the trial of said issue between the said parties as aforesaid it then and there became and was a material question whether the said Henry Troll did give and pay to the said John L. Powers $ 50 for the purpose of influencing the vote of said John L. Powers," etc. This complies with the statute. Sec. 3666, R. S. 1889; State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414.
II. No exceptions were saved to the giving or refusal of instructions and hence the action of the court in that respect is not open to review.
III. Much stress is laid upon the refusal to grant a continuance on the sixth of November, 1895. The application for continuance appears for the first time in the record in connection with the motion for new trial. It is marked "filed and overruled as insufficient." No exception appears to this ruling and we must decline to investigate the merits of the application.
IV. The real point of contention is the denial of the challenge to the array of jurors summoned to try the case. This challenge was in these words:
The facts in regard to the summoning of these jurors are, that previous to the November term, 1895, Judge Edmunds, the judge of the St. Louis criminal court, directed the sheriff to summon one hundred and fifty good and lawful men whose names should be taken from the jury commissioner's list in the manner provided by law; the jury commissioner certified a list of one hundred and fifty jurors under this order to Henry Troll, the sheriff; prior to the completion of the challenges the defendant's attorneys asked for the return of the sheriff to this order, and it appeared that no formal return had been made, but the original list was in court with certain marks or checks thereon which were explained by a deputy sheriff in this manner: those names against which there appeared a cross mark were personally served; those not found had upright parallel lines opposite their names, and those notified by copy had a check against their names.
To the demand that the sheriff make his return the court replied: "It is admitted in this cause, conceded in this cause, that the jurors were served by Sheriff Troll."
Thirty-four jurors made up the panel from which the twelve were to be selected. The state made its challenges after the court refused to quash the panel, and thereupon the defendant declining to make any challenges the court ordered the first twelve to be sworn. Their names and numbers with reference to the list of one hundred and fifty are as follows: Walter D. Heron, number on list 55; Henry C. Wilkening, number on list 145; Nicholas Hiltsch, number on list 59; Henry J. Schlef, number on list 107; Jacob F. Jud, number on list 66; Paul Schoene, number on list 110; John Schulz, number on list 111; Emil Schurr, number on list 113; Prentiss G. Scudder, number on the list 114; W. B. Searing, number on the list 115; Solomon P. Sharp, number on the list 117; James Spengler, number on the list 125.
The defendant then objected to the impaneling of this jury, which objection was overruled by the court, and defendant then and there excepted to the court's ruling. The court then said: "You object to the swearing of the jury?" Mr. Fitzgerald: "Yes, sir." The court: "The objection is overruled." To which ruling of the court defendant then and there excepted.
During the colloquy between the court and counsel as to the disqualification of the sheriff to act in the premises, Mr Fitzgerald said: "If your honor please, the defendant does not take exceptions to the action of the court at all in using its discretion in excusing jurors; that, we conceive, is the prerogative of the court, but we object to the sheriff of the city of St. Louis, when he is an interested party to the case, when he is the prosecuting witness in the case, in which the defendant is charged with the commission of a felony, to use his...
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