State v. Stewart

• Citation: 274 Mo. 649,204 S.W. 10
• Decision Date: 03 June 1918
• Docket Number: No. 20650.,20650.
• Parties: STATE v. STEWART.
• Court: United States State Supreme Court of Missouri

204 S.W. 10

274 Mo. 649

STATE v. STEWART.

No. 20650.

Supreme Court of Missouri, Division No. 2.

June 3, 1918.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

W. E. Stewart was convicted of murder in the second degree, and he appeals. Affirmed.

Scott J. Miller, of Chillicothe, for appellant. Frank W. McAllister, Atty. Gen. (Thomas J. Cole, of Joplin, of counsel), for the State.

WALKER, P. J.

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 10 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 secondhand 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, that he ran to a window and called for help.

The foregoing is, in the main, a résumé 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. Information. 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, section 5037, R. S. Mo. 1909, and is not subject to valid objection. If an information is attested by a private person, it is necessary for the oath attached to be made upon actual knowledge, such as would authorize the affiant to testify as a witness. Made by the prosecuting attorney, however, it may be based upon such information as he may feel warranted in believing and relying upon. State v. Temple, 194 Mo. loc. cit. 241, 92 S. W. 860, 5 Ann. Cas. 954; State v. Gregory, 178 Mo. loc. cit. 55, 76 S. W. 970. This contention is therefore without merit.

II. Summoning and Impaneling Jury. The manner in which the jury was impaneled is assigned as error. On the sworn application of the prosecuting attorney, alleging prejudice on the part of the sheriff in favor of the appellant, the court designated the coroner, under the authority of section 11218, R. S. Mo. 1909, to select the venire and perform all the other duties of the sheriff. The appellant thereupon formally interposed objections to the court's designation, alleging that the cororner was prejudiced against him. The court, under section 3864, R. S. Mo. 1209, then appointed an elisor to summon the venire and perform the duties of the sheriff in the cause. The appointee appeared, qualified by filing the statutory oath, and proceeded to the discharge of his duties. The specific ground of appellant's contention is that the court should not have set aside the sheriff upon the sworn affidavit alone of the prosecuting attorney as to his prejudice. This contention has heretofore received the deliberate consideration of this court in a number of cases; the conclusion reached being that we will not interfere with the trial court's action in a matter such as is here under review, unless it appears that it was arbitrary and unjust. This, for the very sufficient reason that, in the absence of prejudice, there is no ground of complaint. Therefore whether the trial court acts upon the unsupported affidavit of a prosecuting attorney, or requires proof of the prejudice of the sheriff, is a matter left to its discretion. State v. Jeffries, 210 Mo. loc. cit. 323, 100 S. W. 314, 14 Ann. Cas. 524; State v. Hunter, 181 Mo. loc. cit. 333, 80 S. W. 955; State v. Lanahan, 144 Mo. loc. cit. 38, 45 S. W. 1000; State v. Hultz, 103 Mo. loc. cit. 49, 16 S. W. 940. There is no intimation that the individual jurors, either those constituting the array or the trial panel, were subject to objection. Under such circumstances, nothing appearing that the court was not prompted by a wise discretion, its action_ will not be disturbed.

Supplemental to the foregoing contention, it is stated in the motion far a new trial that certain members of the trial panel were summoned by the sheriff before he was disqualified, and that the others were summoned by the elisor. If this be true, although the motion for a new trial does not prove itself, its effectiveness being dependent upon something more than its own terms, this contention will not avail, in the absence of a showing that the members of the jury were not otherwise disqualified. This, for the reason that the method prescribed by the statute for the summoning and impaneling of jurors is directory. State v. Jackson, 167 Mo. loc. cit. 295, 66 S. W. 938; State v. Mathews, 88 Mo. loc. cit. 123.

It is questionable, in the condition of the record, whether appellant's contentions, as above set forth, have been preserved in a manner to authorize their review. Notwithstanding this fact, we have considered and disposed of them on their merits.

III. Testimony. It is contended that error was committed in permitting a witness, Helen Brice, who resided at the place where the deceased roomed, to state that there was a telephone call for the latter a short time before he left, the evening of the homicide, and that it was a man's voice at tie phone, in response to which she called the deceased, who answered the phone, and soon thereafter left the house. This testimony was admitted upon the statement of the prosecuting attorney that the appellant would he connected with the call. Failing in this, the court ordered the testimony stricken from the record, and directed the jury to disregard it. Only by remote inference can this testimony be held to be prejudicial. Failing to connect the appellant therewith left to the jury no reasonable ground to conclude that it was he who made the call. If, however, it be reasoned that the jury might therefrom have concluded that it was the appellant, the testimony, viewed in its most unfavorable light, cannot be regarded as injurious, for the reason that it constituted nothing more than a presumption based upon an inference; this, in the presence of express testimony that the appellant had, during the afternoon preceding the homicide, made personal inquiry of a number of persons as to the whereabouts of the deceased, will not constitute such an error as to work a reversal. Aside from this theory, however, the court's affirmative declaration, excluding this testimony from the consideration of the jury, neutralized any harmful effect it might otherwise have had.

The testimony as to a direction stated by a witness to have been given by some one from the window of the appellant's office, when the deceased was in the street below inquiring as to its location, coupled with the appellant's testimony that he was the only one in his office at that time, is sufficient to render the testimony admissible as one of the relevant circumstances immediately preceding the homicide.

The court's refusal to strike out the statement of a witness that the...