State v. Sassaman

• Decision Date: 15 December 1908
• Citation: 214 Mo. 695,114 S.W. 590
• Parties: STATE v. SASSAMAN.
• Court: Missouri Supreme Court

114 S.W. 590

214 Mo. 695

STATE v. SASSAMAN.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

1. CRIMINAL LAW (§ 223)—PRELIMINARY EXAMINATION —NECESSITY — STATUTORY PROVISIONS.

Where a prosecution for murder was begun by complaint under Rev. St. 1899, § 2441 (Ann. St. 1906, p. 1478), prior to the enactment of Laws 1905, p. 133 (Ann. St. 1906, § 2476a), forbidding the filing of an information in a capital case before accused has been accorded a preliminary examination, and the preliminary examination provided for by section 2447 (Ann. St. 1906, p. 1479) was waived and accused committed to jail under section 2461 (Ann. St. 1906, p. 1482), the prosecution could be continued by information filed after the enactment of the law of 1905, without according a preliminary examination.

2. CRIMINAL LAW (§ 223)—PRELIMINARY EXAMINATION —STATUTORY PROVISION.

The purpose of Laws 1905, p. 133 (Ann. St. 1906, § 2476a), is to accord to persons charged with felonies a preliminary examination, to the end that groundless prosecutions might not be prolonged, and to preserve evidence against accused, and enable the state to have witnesses enter into recognizance to appear before the court trying the case.

3. INDICTMENT AND INFORMATION (§ 52) — FORMAL REQUISITES—VERIFICATION — OATH OF PROSECUTING ATTORNEY.

An information charging murder in the first degree was not defective because the prosecuting attorney instead of saying, "on his oath

does say," said, "under his oath of office he says," etc., the two phrases meaning the same thing; the only oath he is required by law to take being his oath of office.

4. INDICTMENT AND INFORMATION (§ 52) — FORMAL REQUISITES OF INFORMATION—VERIFICATION.

Where the record shows that an information was properly verified when filed January 25, 1907, it was sufficient, though the clerk in his jurat preserving evidence of the administration of the oath recited that it was administered February 25, 1907; it clearly appearing that that date was a clerical error.

5. HOMICIDE (§ 309)—MURDER—TRIAL — REFUSAL OF REQUESTS—CHARGE ON ISSUE NOT IN CASE.

Where there was no issue of manslaughter, it was not error to refuse a request that under the information accused could not be convicted of any degree of crime above that of manslaughter.

6. HOMICIDE (§ 308)—MURDER—TRIAL — INSTRUCTIONS—CONFINING TO ISSUES IN CASE.

Where there was evidence only of murder in the first degree, it was proper to confine the instructions to that degree of homicide, and refuse charges on second degree murder and as to accessories after the fact.

7. CRIMINAL LAW (§ 780) — TRIAL — TESTIMONY OF ACCOMPLICES — CORROBORATION — INSTRUCTIONS.

In a murder case, a charge that by "corroboration" is meant proof of facts by other witnesses, independent of testimony of an accomplice or accessory, that of themselves tend to prove that accused is guilty, that neither proof, even of other witnesses, of the corpus delicti, which means the death of decedent, nor the finding of a dead body where any accomplice or accessory said one could be found, nor proof of wounds or bruises thereon similar to those described by such accomplice or accessory, are corroboration of such accomplice or accessory as required by law, but such independent facts as testified to by other witnesses must go further and of themselves tend to prove that accused actually committed the offense charged, was properly refused.

8. CRIMINAL LAW (§ 780)—TRIAL—INSTRUCTIONS—"CORROBORATE."

A charge that accused in a murder case could be convicted on the uncorroborated testimony of an accomplice alone if the jury believed the accomplice's statements to be true and sufficient in proof to establish accused's guilt, but the testimony of an accomplice when not corroborated by some person not implicated in the crime as to matters material to the issue ought to be received with great caution, etc., sufficiently explains the meaning of the word "corroborate."

9. CRIMINAL LAW (§ 829)—TRIAL—REFUSAL OF REQUESTS—CHARGES EMBRACED IN OTHERS GIVEN.

It is not error to refuse a charge fully covered by another instruction given.

10. CRIMINAL LAW (§ 1056)—APPEAL—RESERVATION OF GROUNDS OF REVIEW—NECESSITY FOR EXCEPTIONS.

Where no exceptions were taken to the court's refusal of accused's request for instructions covering all the issues and in special matters to which the court's attention was called, the matter is not subject to review.

11. CRIMINAL LAW (§ 369)—EVIDENCE—OTHER OFFENSES.

In a murder case, evidence that accused had in his possession a bill of sale purporting to have been signed with "his mark" by decedent to certain property that he had with him, and that the bill of sale was written by accused, was admissible, it being directly connected and bearing a close relation to other facts in the case, though it tended to establish accused's guilt of forgery.

12. CRIMINAL LAW (§ 1169)—APPEAL — REVIEW—ADMISSION OF EVIDENCE—CURE OF ERROR BY WITHDRAWAL.

In a murder trial, evidence of accused's marriage was expressly withdrawn from the jury and they were instructed not to consider it, and when a witness was speaking directly as to the marriage an objection to his testimony was sustained, but he stated facts from which the marriage might be inferred. Held, that the ruling sustaining the objection to the testimony and the charge withdrawing testimony as to the marriage remedied any prejudice arising from the admission of the facts from which the marriage might be inferred.

13. CRIMINAL LAW (§ 1151)—CONTINUANCE— DISCRETION OF COURT.

The granting of a continuance in a criminal case rests in the discretion of the trial court, and its refusal thereof will not be reviewed in the absence of abuse.

14. CRIMINAL LAW (§ 586) — REFUSAL OF CONTINUANCE—DISCRETION OF COURT.

Where a continuance in a criminal case was asked to obtain testimony of absent witnesses to the good character of accused and the bad character of a prosecuting witness, which had been testified to by other witnesses, the court acted within its discretion in refusing the application.

15. WITNESSES (§ 344) — IMPEACHMENT — CHARACTER—SPECIFIC ACTS OF MISCONDUCT.

In impeaching the character of a witness, the inquiry must be directed to his general reputation and evidence of specific acts going to establish his bad reputation is inadmissible.

16. CRIMINAL LAW (§ 608)—CONTINUANCE— HEARING — ADMISSION OF EVIDENCE BY STATE.

On the hearing of an application for a continuance in a criminal case to obtain absent

witnesses, it was not error to introduce the witness fee book and subpœnas and evidence of the clerk of court to identify them, since the court may consult its own files and inquire of its clerk to determine the good faith of the application, and may even consider counter affidavits, but not to controvert the truth of the allegations of the application as to what the testimony of the absence witness would be.

17. CRIMINAL LAW (§ 1144) — APPEAL — REVIEW — PRESUMPTIONS — CORRECTNESS OF RULING ON MOTION FOR NEW TRIAL.

Where error is assigned upon remarks of the proescuting attorney in his argument and upon the alleged action of the court in compelling the jury to occupy an unsuitable room calculated to coerce them to reach a verdict, and the facts as to the remarks and act of the court as to the room are not authenticated by bill of exceptions, but the questions are presented by affidavits and counter affidavits which were used on motion for a new trial which was overruled, the Supreme Court will presume that the trial court, which was better fitted to decide the questions, determined it properly, in the absence of any indication of arbitrary action.

18. CRIMINAL LAW (§ 508)—ACCOMPLICE'S COMPETENCY AS WITNESS.

An accomplice is a competent witness in a murder case.

19. CRIMINAL LAW (§ 741) — TRIAL — PROVINCE OF JURY—WEIGHT AND SUFFICIENCY OF EVIDENCE.

It is the province of the jury to judge of the weight to be attached to the testimony.

20. CRIMINAL LAW (§ 742) — TRIAL — PROVINCE OF JURY—CREDIBILITY OF WITNESSES.

It is the province of the jury to judge of the character, standing, and credibility of witnesses.

21. CRIMINAL LAW (§ 747) — TRIAL — PROVINCE OF JURY—CONFLICTING EVIDENCE.

It is the province of the jury to determine conflicts in the evidence.

22. HOMICIDE (§ 253)—MURDER—EVIDENCE.

Evidence held to support a conviction of murder in the first degree.

23. CRIMINAL LAW (§ 1159)—APPEAL—REVIEW—VERDICT ON CONFLICTING EVIDENCE.

Where there is substantial evidence supporting a verdict, it will not be disturbed on appeal because the evidence as a whole is conflicting.

Appeal from Circuit Court, Johnson County; Nick M. Bradley, Judge.

Robert Sassaman was convicted of murder in the first degree, and appeals. Affirmed.

This cause is now pending before this court upon defendant's appeal from a judgment of the circuit court of Johnson county, Mo., convicting him of murder of the first degree.

On October 5, 1904, Anna Z. Bentley made affidavit before a justice of the peace of Johnson county, charging Robert Sassaman, the defendant, with murder in the first degree, for the killing of one Carl Miller. Upon this charge the prosecuting attorney of said county filed an information against defendant November 3, 1904. October 30, 1906, the defendant was arrested at Chicago, Ill., and was brought to Johnson county, where, before said justice of the peace, he pleaded not guilty to said charge and waived a preliminary examination. On January 25, 1907, in the office of the circuit clerk of Johnson county, the prosecuting attorney filed a new or an amended information charging defendant with murder in the first degree. It was upon this information that the defendant was put upon his trial, the first information having been dismissed. It is unnecessary to reproduce in full the information charging this offense. The challenge to the sufficiency of it is directed to only one part of the information, and that will be given...