State v. Riddle

• Decision Date: 01 February 1904
• Citation: 179 Mo. 287,78 S.W. 606
• Parties: STATE v. RIDDLE.
• Court: Missouri Supreme Court

78 S.W. 606

179 Mo. 287

STATE v. RIDDLE.

Supreme Court of Missouri, Division No. 2.

February 1, 1904.

MURDER—DISCHARGE BY DELAY OF TRIAL— IMPANELING JURY — SWEARING SHERIFF AND DEPUTIES — APPEAL — PRESUMPTION — CONTINUANCE — EVIDENCE — DILIGENCE — REMARK OF COURT—EVIDENCE ON PRIOR PROCEEDINGS—INSTRUCTIONS—EXCEPTIONS— INFORMATION—ADJOURNMENT OF TERM.

1. Under Rev. St. 1899, § 2642, providing that, if one indicted and on bail is not brought to trial before the end of the third term held after the indictment is found, he shall be discharged, the term at which the indictment is referred or the information is filed is not included in such three terms.

2. Under Rev. St. 1899, § 3766, providing that, before any jury shall be impaneled, the sheriff and his deputies shall be sworn as to what they have done and will do, the oath, having been administered at a regular term, need not be administered at an adjourned term thereof.

3. The record being silent as to whether the clerk swore a certain deputy sheriff who summoned jurors, it will be presumed that, as required by Rev. St. 1899, § 3766, he did so.

4. The statutes with respect to summoning jurors in criminal cases being directory, merely, disregard thereof is not ground for new trial, in the absence of a showing of facts from which it will be presumed that defendant was prejudiced.

5. One is not incompetent as a juror in a murder case because he heard part of the evidence of a witness when defendant was released on bail, he showing on his voir dire that he had no opinion.

6. Refusal of continuance for absence of a witness whose evidence would have been merely cumulative is not ground for reversal.

7. Refusal of continuance for absence of witnesses will not be disturbed; defendant not having availed himself of the order allowing him to compel their attendance by attachment, and not showing diligence otherwise to obtain their presence.

8. The remark of the court, after defendant in a murder case had got through cross-examining a witness as to deceased having been in a penitentiary, that he supposed that line of questioning would be objected to some time, will not be held prejudicial.

9. Defendant, on his trial for murder, cannot use testimony of a witness taken on his application for bail, on the ground that he could not be found after diligent search; he merely showing in an application for continuance that he heard that witness was in St. Louis, and that seven days before the trial he caused a subpœna for him, directed to the sheriff of that city, to be issued, but that said sheriff failed to return it; it not appearing that defendant made any other effort to find the witness, and it not even being shown that the subpœna was delivered or mailed to said sheriff, or that the defendant asked for a rule on the sheriff to return the subpœna.

10. Defendant may not complain of an instruction as to murder in the first degree, he having been convicted of a lower degree.

11. The giving of an instruction by the court, of its own motion, after the argument of counsel, not having been excepted to at the time, cannot be considered on appeal.

12. An information for murder, alleging that defendant did shoot and strike L., giving to him, "then and there being," and with the dangerous and deadly weapon, etc., does not fail to charge the offense with certainty, because of the words "then and there being," they referring both to the time and place, and to the person of deceased, as alleged.

13. After the regular term of court had been continued to July 6th, the time fixed for the trial of defendant, and when he was tried, there was a June special term called and held for the special purpose authorized by Rev. St. 1899, §§ 1605, 1606, having no connection with the regular terms. Held, that the adjournment of the special term to court in course (that is, to the next regular term) did not adjourn the adjourned term of the regular term.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Fred Riddle was convicted of murder, and appeals. Affirmed.

Mozley & Wammack, for appellant. The Attorney General, Sam B. Jeffries, and K. C. Spence, for the State.

BURGESS, J.

Defendant was convicted of murder in the second degree, and his punishment fixed at 10 years' imprisonment in the penitentiary, under an information filed by the prosecuting attorney of Stoddard county in the circuit court of said county, charging him with having, at said county, on the 6th day of March, 1902, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, shot and killed with a pistol one Gus Laws. The case is before us upon defendant's appeal.

The facts connected with the homicide are but few, and, briefly stated, are substantially as follows: The defendant, a young man about 20 years of age, worked in his father's saloon, in the city of Dexter. The deceased was a man of mature years, dissipated, turbulent, and dangerous. Bad blood had existed between them for some time, and deceased had threatened to do violence to the defendant. On the day of the homicide, when defendant was in the act of leaving the city, deceased was heard to say of him, "If that damned cuss comes back here tonight, there will be hell in town." Defendant did return that evening at 6:16 o'clock, and, in company with Arthur Hammerly, went direct to his father's saloon. After they had gone into the saloon, the deceased entered, and applied to defendant an insulting epithet, which it is unnecessary to repeat. About this time defendant and Hammerly walked up to the bar and called for drinks, and, while they were standing there, the deceased stepped up by the side of the defendant, and remarked to him, "Who in hell are you?" or words to that effect, whereupon defendant asked him if he was trying to insult him? Laws then turned toward the defendant and said, "You can take it any God damn way you please," and thereupon defendant picked up the whisky bottle and hit the deceased over the head with it. The deceased then grabbed hold of the defendant and began striking him, when defendant drew his pistol and began striking deceased over the head with it, when it was discharged; the ball taking effect in deceased's head, killing him instantly. Defendant testified that the pistol was discharged accidentally; that he had no intention of shooting Laws, but was only using the pistol to keep him off of him. The court instructed for murder in the first and second degrees, manslaughter in the fourth degree, excusable homicide, and self-defense.

The first assignment of error is with respect to the action of the court in overruling a motion filed by defendant for his discharge upon the ground that three terms of court had been permitted to pass, without his consent, without his having been brought to trial. The information was filed on the 8th day of March, 1902, during the regular March term of the circuit court of Stoddard county. The record does not show how the case was continued at this term, nor is it material, for, in order to entitle defendant to his discharge on this ground, the term of court at which the indictment is preferred, or the information filed, is not included. Sections 2641, 2642, Rev. St. 1899; State v. Wear, 145 Mo. 162, 46 S. W. 1099. At the regular September term, 1902, and on the 9th day of that month (being the second day of the term), the case was called and set for trial on the 30th day of said month. But this was not a continuance, within the meaning of the statute. It was then passed, for want of time to try the same, to October 20, 1902, when, upon application of the state, it was continued to the next regular March term, 1903. As the October adjourned term was but a continuation of the regular September term, this was the first continuance by the state after the information was filed. At the March term, 1903, and on the 7th day of July, defendant was placed upon trial. There are two terms of court each year in Stoddard county, fixed by statute. As the defendant was on bail, he was not, under the statute (section 2642, supra), entitled to be discharged of the offense unless he was not brought to trial before the end of the third term of the court after the information was filed, and it is perfectly plain from the record that such was not the case. He was therefore clearly not entitled to be discharged of the offense. State v. Steen, 115 Mo. 474, 22 S. W. 461; State v. Wear, supra.

In proper time, defendant filed his motion to quash the array of jurors upon the ground that the sheriff and his deputies who summoned them, from which the panel of 40 were afterwards selected, were not sworn as provided by section 3766, Rev. St. 1899, in that the array was not selected by an officer first duly sworn as provided by said section, but was summoned by more than one person, and by persons not authorized by law to summon them; also because he had not been furnished with a panel of 40 unprejudiced and qualified jurors, and that Miles Morgan, one of the panel of 40, had heard a part of the evidence taken by the court on defendant's application for bail, and therefore would be more or less influenced. The evidence adduced in support of this motion showed that at the March term, 1903, there was administered by the clerk of the court to the sheriff and two of his deputies the oath prescribed by section 3766, supra, with respect to summoning jurors; and as the...