State v. Stewart
| Decision Date | 03 June 1918 |
| Parties | THE STATE v. W. E. STEWART, Appellant |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. Arch B. Davis, Judge.
Affirmed.
Scott J. Miller for appellant.
(1) The sheriff subpoenaed six jurymen, and thereafter, the elisor without any authority, returns forty men, out of which return six men were chosen who, added to the six already summoned by the regular sheriff, made up the twelve men before whom the defendant was tried. He should have been fairly tried. He did not have twelve jurymen served and summoned by the sheriff but had a jury composed of twelve men, six of whom were legally served by the sheriff and six of whom were served by the elisor. (2) The affidavit of the prosecuting attorney alone, is not sufficient to disqualify the legally authorized sheriff, elected by the people, to impanel a jury. It was an assumable fact and the defendant had the right to have the matter decided upon the testimony before the court. In this case there could have been no possible reason for filing this affidavit, because the sheriff offered to testify, as shown by the record, that he was not of relation, had never seen the defendant until the night of the homicide, was not prejudiced for or against him. The rights of the defendant were not properly guarded when an outsider could be called in, of whose fitness for the important position the defendant had no knowledge. (3) The foreman of the jury that returned the verdict was one of the jurors selected by the sheriff. If he had any prejudice, it was in favor of the State instead of in favor of the defendant, as shown by his return of the verdict against the mass of testimony adduced in this case following the killing of the deceased. The charge that the sheriff was biased in this case is facetious, and by the judgment of the court it was shown to not exist. (4) The information was not properly sworn to, as the evidence shows that the prosecuting attorney knew none of the facts, but swears to it as a fact as known and seen by him and takes the place of any other witness who was present and saw the affray. When the prosecuting attorney swears to the information, as any other witness, he must have knowledge of the fact. It is not sworn to as an officer but as a witness and the evidence shows that he had no such knowledge and therefore, the information is illegal. (5) The testimony of Helen Brice, of itself, would be harmless, but it poisoned the mind of the jury because the State attempted to show that the deceased was called by the defendant, and because somebody called the deceased it must have been the defendant. Could anything be more prejudicial, and especially when there isn't a bit of testimony anywhere that the defendant ever communicated with the deceased? This testimony was vicious and after it was once admitted could not, by instructions or otherwise, be taken away from the jury. (6) The witness was permitted to say that the defendant had a look of "desperation and determination," and the sanction of the court was placed upon this vicious testimony. (7) By the testimony of Charley Golden the defense attempted to show that he held a conversation with the deceased in reference to the wife of the defendant. (8) Mrs. Black was asked "if on Saturday evening before this trouble she saw the deceased and Mrs. Stewart go to this house," and the court sustained the objection, giving his reasons. The deceased was the despoiler of defendant's home and this testimony tended to show it, and the jury should have had the benefit of it. The same I might say of the testimony of Mrs. Green, who was another neighbor to the once happy home of this defendant. The cross-examination of defendant concerning matters as not brought out by the examination in chief, was improper. There is not one word said in the direct examination about any of this cross-examination. State v. Borris, 199 S.W. 1; Sec. 5242, R. S. 1909. (9) Instruction 17 is bad in asserting "the interest of the witness, if any, in the result of the trial, the motive, if any, actuating the witness to testify." The jury told in this case that the defendant had a motive and that the testimony however honestly and faithfully given might, on account of this motive and the fact of his being the defendant, would be the motive to testify falsely to retain his liberty.
Frank W. McAllister, Attorney-General, Thomas J. Cole, of counsel for respondent.
(1) The objection that the jury has not been legally summoned and impaneled in a criminal case comes too late if made for the first time in the motion for new trial. State v. Sansone, 116 Mo. 11; State v. Grant, 152 Mo. 71; State v. Smith, 114 Mo. 423. (2) The bill of exceptions in this case does not show that a motion to quash the panel was ever filed in this case, and, while it is true that a motion to quash the panel is set out in the record proper, that fact will not avail the appellant here. State v. Price, 186 Mo. 143. The fact that appellant has copied his motion to quash the panel in his motion for new trial will not serve the purpose desired. The motion for new trial cannot be made to serve the purpose of the bill of exceptions. State v. Pollard, 139 Mo. 228; State v. Ashcraft, 170 Mo. 409. (3) The information in this case is sufficient. State v. Clay, 201 Mo. 681; State v. Long, 201 Mo. 667; State v. Privitt, 175 Mo. 223; State v. Brown, 168 Mo. 453-5; State v. Kindred, 148 Mo. 279. (4) Instruction 9 correctly declares the law to be that if deceased was accidently wounded by the first shot and that thereafter defendant fired the shot which killed deceased that defendant could not be acquitted on the ground of accidental homicide. (5) Instruction 14 clearly stated that whatever were the relations between defendant's wife and deceased that the fact of such relations did not of itself constitute a defense to the charge. State v. Jones, 78 Mo. 282. (6) Instruction 16 correctly states that the question whether or not deceased had improper relations with defendant's wife was not an issue on the trial. (7) Instruction 17 was the usual instruction as to the credibility of the witnesses. State v. Hudspeth, 159 Mo. 200. (8) That the evidence is sufficient to sustain the verdict. State v. Underwood, 263 Mo. 685; State v. Corcelia, 250 Mo. 425.
The appellant was charged by information in the circuit court of Livingston County with murder in the first degree, in having, on July 6, 1916, shot and killed one Karl Schlobohm. A trial resulted in a conviction of murder in the second degree, the punishment being fixed at ten years in the Penitentiary. From this judgment appellant seeks a review in this court.
The deceased was killed in the appellant's office, in the city of Chillicothe, by shots from a revolver fired by appellant. The latter was an insurance agent. He spent the greater part of July 6, 1916, the day of the homicide, at another town in Livingston County, transacting business for his company. Late in the afternoon of that day he returned to Chillicothe and made inquiry at different places for deceased. He said that he wanted to talk to him, and protest against the attentions of deceased to his wife. After these inquiries, from which he learned where the deceased roomed, he went to a second-hand store, bought a revolver, and at another place obtained some cartridges with which he loaded it, and took it to his office and laid it on a desk near where he usually worked. He then went to a restaurant and got his supper, after which he returned to his office.
It appears that the deceased heard that the appellant had been inquiring for him, and on the same day at some time between 7:20 and 7:30 o'clock P. M., he went to the office of the appellant, and upon entering, asked the latter what he wanted with him. Appellant asked the deceased to be seated, and he would inform him. Deceased sat down, and appellant told him that his (appellant's) wife had told him the night before of the conduct of deceased towards her, and asked him if he would not leave the town and molest her no more. Deceased told him that he would do as he pleased with appellant's wife, so long as she did not object to his conduct; that it was none of appellant's business. Appellant then stated in detail what his wife told him. Deceased admitted the charges to be true, saying she was just as much to him as she was to the appellant. At this juncture, according to appellant's statement, both attempted to secure possession of the pistol, which, during this time, had been lying on the desk between them. A scuffle ensued, in which the deceased was shot twice and killed. One shot penetrated his heart, causing death almost instantly. There is some testimony that during the scuffle, and after the deceased had been shot the first time, he ran to a window and called for help.
The foregoing is, in the main, a resume of the appellant's testimony. Other incidental facts and physical circumstances are present, indicative of the improbability of portions of this testimony, which the jurors in their finding evidently did not believe. These facts need not, therefore, be detailed, as their presence will not, in the view we take of this case, materially affect the conclusion reached. If it becomes necessary to refer to this testimony we will do so in the discussion of the errors assigned.
I. The verification of the information by the prosecuting attorney is alleged to be insufficient. In substance, it states that the prosecuting attorney, upon his oath, says that the facts stated in the information are true according to his best information and belief. This is in compliance with the statute (Sec. 5057, R. S. 1909) and is not subject to valid objection....
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