State v. Pritchett

• Decision Date: 18 May 1909
• Parties: STATE v. PRITCHETT.
• Court: Missouri Supreme Court

119 S.W. 386

219 Mo. 696

STATE v. PRITCHETT.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

1. INDICTMENT AND INFORMATION (§ 41) — PRELIMINARY PROCEEDINGS — PRELMINARY EXAMINATION.

The failure to allow a preliminary examination of accused in a murder prosecution pursuant to Rev. St. 1899, § 2476a, added by Laws 1905, p. 133 (Ann. St. 1906, p. 1487), providing that no prosecuting attorney shall file an information charging a capital offense until accused has had a preliminary examination as provided by statute, was at most an irregularity and would not vitiate a conviction.

2. CRIMINAL LAW (§ 1031) — APPEAL — PROCEEDINGS BELOW — OBJECTIONS — PRELIMINARY PROCEEDINGS — WAIVER OF IRREGULARITIES.

An objection that accused in a murder prosecution had not had a preliminary examination, as required by statute, was waived where it was not made before or during trial.

3. CRIMINAL LAW (§ 972) — APPEAL — PROCEEDINGS BELOW—OBJECTIONS—MOTION IN ARREST—QUESTIONS RAISED.

An objection that accused in a murder case had not had a preliminary examination, as required by statute, could not be raised by motion in arrest; it being no part of the record proper.

4. CRIMINAL LAW (§ 1064)—APPEAL—PROCEEDINGS BELOW — ADMISSION OF DEFENDANTS—MOTION FOR NEW TRIAL.

Objections to the admission of evidence are not available on appeal, where they were not made in the motion for new trial.

5. CRIMINAL LAW (§ 946)—NEW TRIAL— WAIVER OF RIGHT.

Under Rev. St. 1899, § 2689 (Ann. St. 1906, p. 1587), requiring a motion for new trial in a criminal case to be filed before judgment and within four days after return of the verdict, the right to file a motion for new trial may be waived, and is waived where, on the day the verdict was returned, the court stated that accused had been convicted and asked him if there was any legal cause why judgment should not be pronounced, and judgment was then pronounced on accused's failure to make any objection.

6. CRIMINAL LAW (§ 972)—NEW TRIAL—ARREST OF JUDGMENT—DISTINCTION.

While a motion for new trial goes to errors occurring during the pendency of the prosecution, a motion in arrest goes to errors appearing upon the face of the record proper.

7. CRIMINAL LAW (§ 974)—MOTION IN ARREST—TIME OF FILING.

A motion in arrest cannot be filed after judgment in a criminal case.

8. CRIMINAL LAW (§ 1032)—APPEAL—OBJECTIONS—OBJECTIONS ON APPEAL—SUFFICIENCY OF INFORMATION.

Objections to the information can be raised for the first time on appeal.

9. ARREST (§ 63)—CRIMINAL CHARGES—AUTHORITY—AUTHORITY OF CONSTABLE—ARREST WITHOUT WARRANT.

A constable may arrest persons charged with crime in his county without a warrant, if the offense was committed in his presence.

10. ARREST (§ 65)—CRIMINAL CHARGES—ARREST ON WARRANT.

A constable may arrest one charged with crime in his county with a warrant, though the offense was not committed in his presence.

11. ARREST (§ 63)—CRIMINAL CHARGE—ARREST WITHOUT WARRANT—ARMY DESERTED— AUTHORITY OF CONSTABLE.

Under Act Cong. June 18, 1898, c. 469 § 6, 30 Stat. 484 (U. S. Comp. St. 1901, p 817), authorizing any civil officer having authority under the laws of any state to summarily arrest a deserter from the United States army, a constable may arrest a deserter in any part of the state without a warrant.

Appeal from Circuit Court, Camden County; Argus Cox, Judge.

James C. Pritchett was convicted of murder in the second degree, and he appeals. Affirmed.

Nixon, Moore, Roach & Carter, for appellant. E. W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

BURGESS, J.

At the August term, 1907, of the Camden county circuit court, the defendant was convicted of murder in the second degree, under an information filed by the prosecuting attorney of said county charging him with the crime of murder, for having shot and killed with a loaded pistol one William J. Manes, in said county, on the 27th day of July, 1906. Defendant filed motions for a new trial and in arrest of judgment, which were overruled, whereupon he appealed.

The evidence shows that the defendant lived near Richland, Pulaski county, Mo., and that about a month prior to the commission of the alleged offense he enlisted in the United States army, but deserted therefrom some 10 days later. Deceased was constable of Liberty township, and city marshal of Richland, in Pulaski county, and, having learned of Pritchett's desertion through a notice issued by the commanding officer at Jefferson Barracks, Mo., he sought out the defendant and placed him under arrest; but the latter, in some way not disclosed by the testimony, managed to make his escape. Three days later, July 27, 1906, the deceased discovered the defendant working with other men in what was called "the Baker field," in Camden county, some three or four miles from Richland, and rearrested him. With the defendant in his custody, the deceased started towards Richland, and it is not shown that defendant offered any resistance until a point was reached just inside the Camden county line, about a quarter of a mile from Richland, when the defendant suddenly knocked the deceased down and jumped upon him. The struggle was observed by a girl, Cora Newberry, who was passing by on her way home from Richland. She testified that the deceased appealed to her for assistance, stating that Pritchett was going to kill him, and she replied that she was afraid, whereupon the deceased said: "Get somebody to come, then. This boy is going to kill me." She saw that the defendant was endeavoring to secure the officer's revolver, which the latter fought to prevent, meanwhile pleading with the defendant not to kill him. The defendant knocked the officer down and fell on top of him, and the struggle for possession of the revolver continued. Finally the defendant wrenched the weapon from the grasp of the officer, and the fatal shot was fired. The ball, according to the evidence, passed entirely through the officer's head; the wound proving instantly fatal. Cora Newberry did not see the revolver at the time the shot was fired, as the defendant's back was towards her at the time; but immediately after the shooting the defendant rose up, with the revolver in his hand. Seeing the girl, he went up to her and said: "You go home. If you don't I will kill you. Don't you start back to town. You go home as quick as you can." He then left her and ran through the woods, leaving his hat behind him.

The testimony on the part of the defendant showed: That, when the deceased accosted him in the Baker field, on July 27th, he said to the defendant, "You are my man"; that the defendant responded, "All right"; that the deceased then handcuffed the defendant's right hand to his own left, and remarked, "If you get away from me this time, you will get away with a dead dog tied to you." No warrant for the defendant's arrest was read or exhibited by the deceased at the time, nor did the defendant object to the action of the deceased or ask by what authority he made the arrest. Soon after the shooting the defendant was seen by some of his acquaintances. His clothing was torn, his face bruised, and his mouth bleeding, and the handcuff was still on his wrist. Testifying in his own behalf, the defendant told of his apprehension by the deceased, and of the fact that they were handcuffed together and started for Richland in that fashion. He testified that while on the way the deceased made numerous threats as to what he would do if the defendant attempted to escape. The day was warm, and the deceased and defendant, at the latter's request, stopped to rest several times. Finally the deceased refused to permit any further stop, and, presenting his pistol, threatened to kill the defendant if he stopped again. Defendant caught hold of the pistol, which he said was pointed at his breast, and immediately a struggle ensued for the possession of the weapon, during which deceased stumbled and fell, dragging the defendant down with him. The pistol dropped to the ground, and the deceased recovered it and struck the defendant therewith in the face. Defendant again got hold of the weapon, and during the struggle for its possession it was accidentally discharged, the ball striking the deceased. While the struggle was in progress, the handcuffs came apart, which enabled him to get away. Defendant denied the truth of Miss Newberry's testimony. He also denied that he deserted the army, and explained that he was allowed a furlough for 10 days by an officer at Jefferson Barracks, but that he stayed at home a few days longer than permitted. He was, however, unable to produce said furlough, which he said was in writing.

Mrs. Etta Bakewell, a witness for the defendant, testified that she saw the struggle between the defendant and deceased. She was on her way home from Richland, and left the main...