State v. Stevenson

• Decision Date: 01 October 1887
• Parties: STATE v. STEVENSON.
• Court: Missouri Supreme Court

5 S.W. 806

93 Mo. 91

STATE v. STEVENSON.

Supreme Court of Missouri.

October Term, 1887.

1. CRIMINAL PRACTICE — PEREMPTORY CHALLENGES — MAYHEM.

Rev. St. Mo. § 1261, provides that a person convicted of mayhem shall be confined in the penitentiary not more than 25 years. Section 1900 provides that the defendant on trial for an offense punishable by not less than a certain number of years' imprisonment, but with no limit as to its duration, shall be entitled to 12 peremptory challenges of jurors; for offenses punishable by death or imprisonment for life, 20 challenges; in other cases punishable by imprisonment in the penitentiary, 8 challenges and no more. Held, that in an indictment for mayhem defendant was entitled to 8 challenges.

2. SAME — CONTINUANCE — PRESUMPTION.

The court refused a motion for a continuance, but the record did not show that any exception was taken, nor did it set forth the application. Held, that even if an exception had been taken, as the application was not set forth in the record, it will be presumed that the action overruling it was proper.

Appeal from circuit court, Jefferson county; JOHN L. THOMAS, Judge.

The Attorney General, for respondent. Tatum & Phillips, for appellant.

NORTON, C. J.

Defendant was tried in the Jefferson county circuit court at its January term, 1886, under an indictment charging him with putting out one of the eyes of Jacob Dahle on purpose, and with malice aforethought, by shooting him with a gun or pistol. The trial resulted in his conviction, and he was sentenced to imprisonment in the penitentiary for 12 years. From this judgment defendant has appealed, and the first ground relied upon to sustain his appeal is that the trial court refused to impanel 30 qualified jurors, from which 12 men were to be chosen to try the case. In other words, defendant claimed that he was entitled to 12 peremptory challenges, and the state to 6. This claim the court disallowed, and impaneled 24 qualified jurors, instead of 30, as claimed by defendant, and to this action of the court defendant excepted.

We are of the opinion that the court did not err in this ruling, for the following reason: The indictment is based on section 1261, Rev. St. 1879, which provides that any person convicted of the offense therein designated shall be punished by imprisonment in the penitentiary for a term not exceeding 25 years. It is provided by section 1900, Rev. St., as follows: "The defendant in every indictment for a criminal...