State v. Rush
| Decision Date | 07 May 1888 |
| Parties | The State v. Rush, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.
Affirmed.
T. B Haughawout for appellant.
(1) Defendant's motion to quash the indictment should have been sustained; the description of the money therein was not sufficient. State v. Kroeger, 47 Mo. 530, and cases therein cited. (2) The court should not have permitted the state to take a severance in the cause, and then permitted Bailey and Pike to use statements made to them by Beard, the co-defendant, under promise made to Beard that he would not be prosecuted, as a key by which they could open the heart of the defendant and obtain from him the pretended confession. 1 Bish. Crim. Proc. 962; 15 Mo. 28; Fitzgerald v State, 14 Mo. 413; State v. Underwood, 57 Mo 40. (3) The admissions or confessions of defendant, as testified to by sheriff Bailey and detective Pike were not admissible. State v. Gorman, 64 Mo. 526; State v. Simons, 50 Mo. 368; State v. Hager, 50 Mo. 192. (4) A new trial should have been granted because of the misconduct of the sheriff having the jury in charge. State v. Murray, 91 Mo. 95, and cas. cit. (5) A new trial should have been granted because the court did not instruct upon all the law in the case. State v. Palmer, 88 Mo. 568; State v. Bank, 73 Mo. 592. (6) A new trial should have been granted because of the misconduct of the jury.
B. G. Boone, Attorney General, for the state.
(1) The description of the money in the indictment is sufficient. R. S., sec 1817; State v. Burnett, 81 Mo. 119. (2) The confessions and statements of defendant were competent. State v. Simons, 50 Mo. 370; State v. Hagan, 54 Mo. 192; State v. Jones, 54 Mo. 478; State v. Carlisle, 57 Mo. 102; State v. Guy, 69 Mo. 430; State v. Phelps, 74 Mo. 128; State v. Patterson, 73 Mo. 695; State v. Hopkirk, 84 Mo. 278; State v. Fredericks, 85 Mo. 145. (3) The separation of the jury was not such as to justify a reversal. State v. Collins, 86 Mo. 245; State v. Payton, 90 Mo. 220; State v. Washburn, 91 Mo. 571. (4) Where affidavits are filed in support of and against the motion for a new trial this court will not interfere with the discretion of the trial court in refusing to grant it unless it appears that defendant has been prejudiced. State v. Griffith, 63 Mo. 545. (5) (a) Jurors will not be permitted to impeach their own verdict. State v. Branstetter, 65 Mo. 149; State v. Alexander, 66 Mo. 148; State v. Shock, 68 Mo. 552; State v. Dieckmann, 75 Mo. 570; State v. Fox, 79 Mo. 109; State v. Dunn, 80 Mo. 681. (b) Testimony as to jurors' declarations, made after the trial, will not be received to show misconduct. State v. Deickmann, supra; State v. Cooper, 85 Mo. 256. (c) A juror's testimony is admissible to support the verdict. State v. Underwood, 57 Mo. 40.
The defendant was jointly indicted in the circuit court of Jasper county with one Seth Beard for the crime of robbery in the first degree, and on his motion was granted a separate trial; his motion to quash the indictment having been overruled, he was tried, found guilty, and his punishment assessed at imprisonment in the penitentiary for a term of ten years, and he was sentenced accordingly; his motion for new trial and in arrest of judgment having been overruled he appealed, and assigns for error that the court overruled his motion to quash the indictment, admitted incompetent evidence, refused proper and gave improper instructions, failed to declare all the law of the case, and refused to grant a new trial for the improper conduct of the sheriff and the jury.
I. The motion to quash was properly overruled. The offence was well charged. The money charged to have been taken was described as "one piece of current gold coin of American coinage of the value of ten dollars, and three pieces of current gold coin of American coinage of the value of five dollars each, and four genuine United States legal tender notes, commonly called greenbacks, of the value of twenty dollars each." A description in terms much more general would have been sufficient under the statute. R. S., 1879, sec. 1817; State v. Burnett, 81 Mo. 119.
II. Sheriff Bailey, sworn as a witness on behalf of the state, was permitted, over the objections of the defendant, to testify to a conversation he had with the defendant in which he made certain criminating admissions, after answering as follows to preliminary questions: Q. Q. E. S. Pike, who arrested the defendant in Kansas and brought him back to Jasper county, was present at the same conversation and testified in regard to it. He was also permitted to testify, over the objection of the defendant, to the following conversation had with defendant on the way back: "I told him I was satisfied that he was connected with the case, and he said he was not guilty himself, but knew who was." These admissions of the defendant were made to an officer having him in custody, but it appearing that they were not induced by any promise of benefit or favor, or threat of disfavor, or intimidation, connected with the subject of the charge, made or held out by such officer, such admissions were voluntary and admissible in evidence. State v. Simon, 50 Mo. 370. It does not appear whether the statement made by the sheriff, "that Seth Beard had given him away," was true or false, but even if it was false and the defendant made the admissions under the mistaken supposition that the co-defendant had divulged facts in relation to the crime, this would not have rendered them inadmissible. State v. Jones, 54 Mo. 478; State v. Phelps, 74 Mo. 128.
The fact that the defendant, when he came to testify in his own behalf before the jury, gave a different version of the conversation, testifying that Bailey, the sheriff, told him that "he had just as well give up about the case; that Seth Beard had told it all; * * * we don't want to send you over the road, but want to send Seth Beard," afforded no grounds for excluding the admissions testified to by Bailey and Pike as the court was asked to do by defendant's instruction number eight, the refusal of which is complained of as error. If the defendant desired to have his testimony considered by the court in determining the question whether his admissions about to be testified to by Bailey and Pike were voluntary, he should have proffered his evidence when that preliminary question was being tried by the court. Having declined to do so, he could not raise that issue again upon his own evidence on the trial before the jury and ask the court to pass upon it the second time by way of instruction, and if it was error, as is contended, for the court, after having decided that issue upon the evidence before the court when it was being tried, afterwards to submit it to the jury upon all the evidence in the case, as was done in instruction number five, it was an error in favor of the defendant of which he ought not to be heard to complain.
III. It is urged for reversal that the court failed to instruct the jury on the whole law of the case, but counsel have not pointed out, nor have we been able to discover, wherein such failure consists. It is also contended that there was no evidence upon which to base the instruction in regard to the presumption arising in case of flight, although the defendant was confessedly present when the crowd was standing around Pirtle just after the robbery occurred discussing it, and heard that a man had been robbed; that it was shown he was not again seen in the city until he was brought back from Kansas on requisition a year afterwards; that during the period intervening the sheriff had a writ for his arrest in his hands; that a reward was offered and that he and the police officers were searching for him, but could not find him; that, when the sheriff asked him where he had been and said, "you gave us quite a chase," he made no answer to the question, and gave no account of his absence, nor did he choose to do so when testifying as a...
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