State v. Shipley

• Decision Date: 03 February 1903
• Parties: STATE v. SHIPLEY.
• Court: Missouri Supreme Court

71 S.W. 1039

171 Mo. 544

STATE v. SHIPLEY.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

FELONIOUS ASSAULT — FLIGHT — EVIDENCE— TRIAL JURORS—SEPARATION—MISCONDUCT— NEW TRIAL—HEARING OF MOTION.

1. Where, in a trial for felonious assault, no objection was made to testimony introduced to show the flight of the defendant, except that the question of the prosecuting attorney was leading, and no motion was made to strike it out on the ground of surprise, an objection that the evidence did not tend to show flight was untenable.

2. In a trial for felonious assault, a town marshal testified that immediately on hearing the shot he went to where it was fired, and, seeing defendant there, asked him who fired the shot. whereupon defendant ran, and returned the fire which the marshal and the sheriff opened on him when he refused to halt. The sheriff, who testified to having come up as the defendant was ordered to halt, told the same story of the flight. The sheriff was also the father of the girl at whom the shot was alleged to have been fired. The defendant knew the official character of both the officers. Held, that the evidence was admissible as tending to show a flight from officers.

3. There was no impropriety in the elisor taking the jury out in a body to answer a call of nature, after the conclusion of attorneys' argument, such course being preferable to taking them out one or two at a time.

4. It does not constitute a separation of jurors for them to walk in single file through a lighted courtroom, though the last one, in company with the elisor, is 10 or 12 feet behind the others.

5. In a trial for felonious assault, as the jury were about to retire, the sheriff, who was also the father of the girl on whom the assault was alleged to have been made, preceded them with a lighted lamp through the courtroom as they came in from outdoors and up a flight of stairs to the jury room. This he unlocked and entered, and, after leaving the lamp on the table, and showing the elisor, who had charge of the jury, how to fasten the door, immediately left. Held, that there was no misconduct.

6. Where a jury, having retired for the night, and being within hearing of the elisor, who was in an outside hall, were laughing over amusing anecdotes told by counsel during the trial, a remark by the elisor that counsel was a good hand to tell stories was at most a harmless indiscretion, not requiring a reversal of the verdict.

7. On the hearing of a motion for new trial, an offer to show a remark of a juror, based on a newspaper account, and made before trial. that, if he had been on a former jury, he would have sent defendant to the penitentiary, was properly refused, where no such ground was mentioned in the motion, and where the name of the juror was not given.

Appeal from circuit court, Polk county; W. W. Graves, Judge.

Fred Shipley was convicted of a felonious assault, and appeals. Affirmed.

Johnson & Sea and B. J. Emerson, for appellant. Edward C. Crow, Atty. Gen., and C. D. Corum, for the State.

GANTT, J.

An information was filed in the circuit court of Polk county by the prosecuting attorney of that county, charging that defendant, on the 2d day of November, 1901, at said county, in and upon Fred Moore and May Franklin unlawfully, feloniously, on purpose, and of his malice aforethought did make an assault, and did then and there on purpose, and of his malice aforethought, feloniously shoot at the said Fred Moore and May Franklin with a certain pistol, loaded with gunpowder and leaden balls, etc. The defendant was duly arraigned, and entered his plea of not guilty. The cause was continued on a proper application, and was finally tried in May, 1902, and defendant was convicted of a felonious assault, and his punishment assessed at two years in the penitentiary. He appeals to this court.

As one of the parties at whom defendant is charged to have shot, to wit, Miss Franklin, was a daughter of the sheriff of said county, and as there was no coroner, at the time, of said county, the circuit court appointed an elisor to summon and take charge of the jury.

1. The information was in all respects sufficient, and, indeed, it is not challenged in this court. The instructions likewise are free from error, and no objections are urged against them. The evidence was sufficient to sustain the verdict.

2. Errors are assigned on the admission of testimony on the part of the state and on the misconduct of the elisor in permitting the jury to separate after the argument and in discussing the case with the jury while under his charge. These we will now examine in their order. The defendant complains that the court erred in admitting the evidence of Len Marshall to the effect that he was the city marshal of Bolivar on the night of the alleged assault, and that immediately after the shot was fired he went at once to the place where the shot was fired (Moore's butcher shop), and when he reached there defendant was standing in front of the shop on the sidewalk, and when he reached him he inquired at once of defendant what was the matter, or who shot, and that just as soon as he addressed him the defendant ran off, and that the sheriff, Franklin, and the marshal pursued him, and shot at him, and defendant returned the fire. He escaped then, but later that night was apprehended at his father's house. The sheriff testified that when he reached the scene defendant was running, and the marshal was ordering him to halt; but he ran on, and the sheriff also commanded him to halt, and he continued his flight, and thereupon the sheriff shot at him, and defendant returned the fire, and continued his flight....