State v. Stark
| Citation | 72 Mo. 37 |
| Parties | THE STATE v. STARK, Appellant. |
| Decision Date | 30 April 1880 |
| Court | United States State Supreme Court of Missouri |
Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.
AFFIRMED
Smith & Abernathy for appellant.
J. L. Smith, Attorney-General, and Chas. Forbes, Prosecuting Attorney, for the State.
The defendant was indicted for an assault upon William Webb with intent to kill. At the March term, 1880, of the Bates circuit court, he was tried, found guilty and sentenced to two years imprisonment in the penitentiary. He appealed from the judgment, and the points relied upon for a reversal will be noticed in the order in which they are made in the brief of his counsel.
Mr. C. C. Bassett, an attorney at law, was employed to assist the prosecuting attorney, and made the statement of the case to the jury. Because section 1908, Revised Statutes, prescribing the order of trial, provides that “the jury being empaneled and sworn, the trial may proceed in the following order: First, the prosecuting attorney must state the case,” etc., it is contended that it was error to permit that statement to be made by the attorney employed to assist the prosecuting attorney. In the State v. Hays, 23 Mo. 287, it was decided that an attorney might be employed to assist the State's attorney in the prosecution. If an assistant may be employed, it follows that he may occupy any position in the trial of the cause assigned him by the prosecuting attorney. He is, as to the trial of the cause in which he is so employed, a prosecuting attorney.
Appellant also complains that the court erred in permitting the prosecuting attorney to make statement of facts to the jury which were not proved. Mr. Bassett, in his closing address to the jury, stated that “defendant had gone to the Indian Territory, where all rascals go.” The evidence showed that after the assault upon Wm. Webb the defendant went, fled, to the Indian Territory. Defendant, in his own testimony, states that he went there. The additional words, “where all rascals go,” whether true or false, could certainly have had no effect upon the jury.
He also referred to defendant's physical strength, stating that he was a strong, robust man, and one whom very few men would like to come in contact with in a personal encounter. It was wholly immaterial whether he was a strong, robust man, whom few would like to encounter or not. He was charged with shooting at Wm. Webb, and whether a weak or a strong man, was a matter of no consequence.
Mr. Bassett also said he “believed defendant guilty.” I suppose no attorney ever made an argument to a jury, in such a case, without expressing his belief of the guilt or innocence of the accused on the facts. Other equally trivial statements made by the attorney in his closing address to the jury are complained of, but they are of the same character as the above.
The only additional remarks made by the attorney, which we shall particularly notice, was the following: Mr. Boxley, by his remarks, opened the door for these observations by the attorney prosecuting for the State, and they were a legitimate answer to his ill-timed and unwarranted statement.
After the case was given to the jury, one of them asked the deputy sheriff, who had charge of them, if they could find a verdict and the court fix the punishment. The deputy sheriff made no reply. The juror asked him to see the judge and ascertain, but he did not see the judge, and nothing further on the subject...
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