State v. Sanders

• Decision Date: 31 October 1878
• Citation: 68 Mo. 202
• Parties: THE STATE v. SANDERS, Appellant.
• Court: Missouri Supreme Court

68 Mo. 202

THE STATE

v.SANDERS, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

Bray & Cravens, Walser & Cunningham for appellant.

J L. Smith, Attorney-General, for the State.

NAPTON, J.

This was an indictment for an assault upon one George Burgoon, with intent to kill. The assault was committed on the night of the 26th of July, 1876, when Burgoon, who lived about three miles from Carthage, in Jasper county, was in his bed asleep between ten and eleven o'clock at night. That the assault was cowardly and with murderous intent, is not questioned, the only question being whether the defendant was the man who committed it. As the night was dark, the evidence was necessarily mainly circumstantial, and strongly pointed to the defendant; there was also a mass of testimony equally strong conflicting therewith not indicating or implicating any other person, altogether making a case peculiarly proper for a jury. The only matters for our consideration are the propriety of the instructions and the admissibility of the evidence on which they were based, and the refusal of the court to set aside the verdict on account of alleged misbehavior of the jury.

The evidence in regard to the criminal intercourse between Mrs. Burgoon and the defendant--the quarrels between the husband and wife, and the law-suit between Burgoon and defendant, all growing out of this alleged intimacy, in our opinion, was proper for the consideration of the jury, and submitted to them under proper instructions. The only instruction to which serious objection is made is the 6th, and the only objection to this is, that there was no evidence to authorize it. After a careful examination of the testimony, extensive as it is, we have reached a different conclusion. We think there is some evidence to support the theory that defendant had something to do with the writing, or procuring of the writing, of the letters referred to in that instruction, although the preponderance of the testimony is undoubtedly to the contrary. But this was a matter for the jury. Burgoon testifies that the superscription on the envelope of the letter purporting to come from his wife was in Sanders' handwriting, and that he never wrote any letter to her after their separation and her removal to Carthage. The experts introduced by the defendant testified that all the letters produced were in the same handwriting, and some of them declared that the handwriting in all was that of Burgoon. It was for the jury to decide how this was, and, therefore, the 6th instruction to them, that “if they believed the letters, purporting to have been written by Burgoon, were written, or procured to be written, by the defendant, to be used as evidence in his favor, this may be considered by them in determining the guilt of the defendant,” was proper and authorized by the evidence.

The principal objection to the judgment in this case is based on an affidavit in regard to the misconduct of the jury. This affidavit was made by one Snyder, who was not a juryman. He states that on the morning after the jury retired he saw several persons, whom he afterwards ascertained to be jurors, experimenting with an old shoe, which had a hole freshly cut through the sole, to see whether a track made by it would be similar to the track testified to as being in the lane running west from Burgoon's house; that one of the jurors stepped up to him and said: “We have been trying tracks, look here,” pointing to tracks made in the dust with an old shoe, “we have been making...