State v. Sneed

• Decision Date: 16 May 1887
• Citation: 4 S.W. 411,91 Mo. 552
• Parties: The State v. Sneed, Appellant
• Court: Missouri Supreme Court

4 S.W. 411

91 Mo. 552

The State v. Sneed, Appellant

Supreme Court of Missouri

May 16, 1887

Appeal from Jackson Criminal Court. -- Hon. J. K. Sheley, Special Judge.

Affirmed.

J. W Jenkins and C. W. Clarke for appellant.

(1) The special judge, who presided at the trial, was not elected as required by the statute, and had no authority to preside as judge, try and sentence the defendant. R. S., sec. 1879; Lacy v. Barret, 75 Mo. 469. (2) The failure of the court to instruct the jury as to manslaughter in the fourth degree was error. State v. Anderson, 86 Mo. 309; State v. Banks, 73 Mo. 597; State v Robinson, 73 Mo. 308; State v. Hill, 69 Mo 452. (3) The court also erred in refusing to instruct the jury as to murder in the second degree. State v. Robinson, 73 Mo. 308; State v. Curtis, 70 Mo. 594; State v. Edwards, 70 Mo. 480. (4) The court should have granted a continuance, on the affidavit of defendant. The importance of the testimony of T. M. Folks is fully shown, as well as due diligence. State v. Bradley, 90 Mo. 160; State v. Jennings, 81 Mo. 185. (5) The instruction, which is numbered one in the record, is relative to a variance in the proof in the name of the deceased. The indictment charged the defendant with killing Orlean Harrison Loomis. The proof was that he killed a "man called Mr. Loomis," no one being able to give his first name. The court was asked to say to the jury that the evidence must correspond to the charge in the indictment in the name of the deceased; that evidence of the killing of a man called Loomis would not sustain an indictment for killing Orlean Harrison Loomis. This was refused. Such a variance and uncertainty would not sustain an indictment for a petty larceny, to say nothing of a case like this, when a man's life is involved. State v. Fay, 65 Mo. 490; State v. Wilson, 30 Conn. 500; State v. English, 67 Mo. 136; Commonwealth v. Gill, 14 Gray, 400; Timms v. State, 4 Cold. (Tenn.) 138; Hensley v. Commonwealth, 1 Bush (Ky.) 11; Rockwell v. State, 12 Ohio (N. S.) 427.

B. G. Boone, Attorney General, for the state.

(1) Defendant's application for a new trial was properly overruled. No diligence was shown by defendant in endeavoring to procure the attendance of the witness. R. S., sec. 1884; Wood v. Railroad, 58 Mo. 109; State v. Lange, 59 Mo. 418; State v. Able, 65 Mo. 357. Besides, the evidence of the witness, if present at the trial, would have been incompetent, as not being a part of the res gestae. State v. Green, 13 Mo. 382; State v. Evans, 65 Mo. 578; State v. Snell, 78 Mo. 240. (2) The special judge was possessed of the full power of a regular judge, and, in the event of a mistrial, was authorized, without reelection, to proceed to try the case. R. S., secs. 1878-9; State v. Hayes, 78 Mo. 580; Ex parte Bradley, 48 Ind. 556. (3) The instructions given for the state properly declared the law, and there was no error in the ruling of the court on defendant's refused instructions.

OPINION

Norton, C. J.

The defendant was tried and convicted of murder, in the first degree, at the August term, 1886, of the criminal court of Jackson county, and his motion for a new trial being overruled, he has appealed to this court, and assigns, as his first ground of error, that the special judge, who presided at the trial, was not elected as required by the statute, and had no authority, as judge, to try and sentence defendant. It appears from the record that Hon. H. P. White was the judge of the criminal court of Jackson county, and that, at the August term, 1884, of said court, defendant made an affidavit, under section 1877, which rendered said judge incompetent to preside at the trial, whereupon an election was ordered and held under section 1878, Revised Statutes, which resulted in the election of Hon. J. K. Sheley, as special judge, who proceeded to try the cause, which resulted in the conviction and sentence of defendant for murder in the first degree, which judgment, on appeal to this court, was reversed, and the cause remanded for trial to said criminal court, and, when called for trial, at the August term, 1886, of said court, said Sheley, who had been elected special judge to try the case, as above stated, proceeded to preside at the trial, resulting, as before stated, in the conviction of defendant.

It is claimed by counsel that under section 1879, Revised Statutes, the power of the special judge to try the cause was exhausted when he signed the bill of exceptions in the trial had at the August term, 1884. The above section is as follows: "The special judge elected, as provided in the next preceding section, shall immediately after his election take an oath to support the constitution of the United States and of the state of Missouri, and to hear and try the particular cause or motion pending, without fear, favor, or partiality; and such special judge shall possess, during such trial or hearing and in relation thereto only, all the powers, perform the duties, and be subject to the same restrictions as the judge of said court, but shall have no power whatever in any other cause than the one specified in the order of record; and upon the conclusion of the trial of said cause in said circuit or criminal court, his power and duties as such special judge shall instantly cease and determine."

We are of the opinion that the trial referred to in the italicized words of the section above mean a trial in its legal sense, that is, a trial had according to the rules of law. The trial had in August, 1884, was not such a trial, but was, in the judgment of this court, a mistrial, and hence the cause was remanded for trial. Suppose, as suggested by Justice Sherwood during the oral argument, the special judge had sustained defendant's motion for a new trial on the ground of error committed in the trial had, could there be any question as to the right of the special judge to have proceeded and tried the cause? We think not. And the same result would follow whether the new trial was granted by the special judge, or, as it was, by this court, in reversing the judgment and remanding the cause. This, we think, is made apparent by section 1998, Revised Statutes, article 21, which is devoted to appeals and writs of error in criminal cases, and is as follows: "The court to which any criminal cause shall be remanded for new trial shall proceed therein in the same manner as if such cause had not been removed into the Supreme Court." The case of Lacy v. Barrett, 75 Mo. 469, to which we have been cited, has no bearing on the question we have been discussing.

It is next insisted that the court erred in refusing to give instructions for murder in the second degree, and manslaughter in the fourth degree. We are of the opinion that the evidence did not call for either of such instructions. On the part of the state the evidence disclosed substantially the following state of facts: That deceased and defendant, on the twenty-sixth of July, 1884, drank together at a saloon in Kansas City; that deceased was greatly under the influence of liquor, and while standing at the bar defendant slipped the watch of deceased from his pocket, and, on discovering that his act in so doing was observed by two others, handed the watch to the saloon keeper to be kept for the deceased; that soon after this defendant was seen standing outside of one of the doors of a grocery, or saloon, in which the deceased was at the time, as if watching for some one, and was heard to remark, "damn you, you will not get away from me this time." Soon after this, one Sutherland, with deceased, whom he was trying to get to go to his home, came out of the saloon and started, being followed by the defendant; that deceased insisted on returning to get something more to drink, and did...