State v. Taylor

• Decision Date: 31 March 1896
• Citation: 35 S.W. 92,134 Mo. 109
• Parties: STATE v. TAYLOR et al.
• Court: Missouri Supreme Court

35 S.W. 92

134 Mo. 109

STATE v. TAYLOR et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1896.

CRIMINAL LAW — APPEAL — PRACTICE — RECORD — TRIAL — RECEPTION OF EVIDENCE — JURORS — PANELING — COMPETENCY — EX POST FACTO LAW — CHANGE OF PROCEDURE — WITNESS — CREDIBILITY — INSTRUCTIONS — ALIBI — REMARKS OF STATE'S ATTORNEY — MISCONDUCT OF JURY — DISCRETION OF COURT.

1. In prosecutions, action of the court on motion for a rule on attorneys to show by what authority they appear for the state is matter of exception, which can therefore only be brought into the record for review on appeal by bill of exceptions.

2. Where the court, on the exclusion of evidence in the trial of the competency of jurors, states to the counsel offering the evidence that he will hear him further upon that, and the offer of such evidence is not renewed, its exclusion is not available on appeal.

3. When a juror is shown to have left the state for two years with the intent of changing his domicile, and it is not shown that his return was animo manendi, refusal to accept him as a juror is not error.

4. The court may excuse, of its own motion, incompetent jurors.

5. Though jurors testify that they have formed opinions as to defendant's guilt from reading newspaper reports of the evidence on a former trial, yet, when their entire voir dire examination shows that the alleged opinions were merely impressions, their acceptance as jurors is not error.

6. A challenge to a juror for cause must allege the specific cause of challenge.

7. If challenge be first made to the polls, it cannot afterwards be made to the array.

8. Laws 1895, p. 165, reducing the time within which accused is required to make his challenge to the 40 veniremen, is a change in the method of procedure merely, and therefore is not unconstitutional, as an ex post facto law, as regards crimes committed before the passage of the act.

9. Error in instructing the jury that in determining what weight, "if any," they will give accused's testimony, they may consider his interest in the case, is not ground for reversal, where, at defendant's request, an instruction that accused's testimony cannot be disregarded because he was charged with the commission of a crime, and that, therefore, the jury should fairly and impartially weigh his testimony together with all the evidence in the case, was also given.

10. An instruction that the jury would be warranted in finding defendants guilty if they believe that "the defendants, or either of them, the other being present and abetting," did willfully, etc., shoot deceased, is not ground for reversal, as requiring a conviction of both defendants if a conviction of one was had.

11. Where the evidence shows a willful murder, by decoying deceased to the place of the homicide, the defense being an alibi, an instruction to find both defendants guilty if the defendants, or either of them, the other being present, aiding, abetting, or "consenting thereto," did willfully, etc., shoot deceased, is not ground for reversal.

12. An instruction that defendant is not required to prove an alibi beyond a reasonable doubt; that, although the evidence of an alibi falls short of the weight of moral certainty, yet if it leaves in the minds of the jury such a doubt or uncertainty that, if taken by itself, they could not find for or against an alibi, then the jury must carry such doubt into the case of the prosecution, and array it there as an element of reasonable doubt, beyond which the prosecution must establish guilt; that the defendants are entitled as much to the benefit of such doubt as to any other doubt raised by the evidence, and if its weight alone, or added to that of any other doubt, be sufficient to raise a reasonable doubt as to defendant's guilt, etc., the jury must acquit, — is sufficient.

13. It is proper to refuse to instruct that if any one of the jury, after duly considering all the evidence, and after consulting with his fellow jurymen, should entertain a reasonable doubt of defendant's guilt, the jury cannot find defendant guilty, as authorizing an acquittal on a disagreement.

14. Evidence that defendants, when arrested outside of the state, willingly returned, is irrelevant.

15. A witness cannot be impeached by contradictory statements as to matters not relevant to the issues on trial.

16. Where the motives of defendant's mother-in-law, testifying in defendant's behalf, are not sought to be impugned, her testimony at the coroner's inquest is not admissible to corroborate her testimony, when attacked by evidence of contradictory statements on her part.

17. Misconduct of the prosecuting attorney, in calling the jury's attention to the fact that defendant's wife had not been placed upon the stand by him, is not ground for reversal, where the court immediately reprimanded him by stating to him that his argument was improper, and that he must keep within the record, if he desired to argue the case.

18. Remarks of the prosecuting attorney, referring to defendant's counsel, that without doubt he was a good man, yet in a number of other murder cases he had thrown his head heavenward, and, with quivering face and equally impressive tones, proclaimed his belief in his client's innocence, allowed by the court to go unrebuked on objection, are not ground for reversal.

19. Remarks of the prosecuting attorney that he is acting in the case without pay, from a sense of duty to the people, allowed to pass unrebuked on objection thereto by defendant, are not ground for reversal.

20. Remarks of the prosecuting attorney reflecting discreditably upon counsel for defendant are not ground for reversal, where the court rebukes the attorney and directs him to avoid such vituperation.

21. The mere fact that the jury were permitted by the officer in charge to be photographed is not ground for reversal.

22. Nor is the fact that they were permitted to purchase and drink a small quantity of beer during the trial, it not appearing that they were in any way influenced thereby.

23. Nor is the fact that they were permitted to play a game of cards pending the trial, it not appearing at what stage of the trial the game was played.

24. On motion for new trial the refusal to allow defendant time to secure affidavits in rebuttal of those filed by the state rebutting the affidavits filed by defendant with his motion, is a matter of discretion with the trial court.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

William P. Taylor and another were convicted of murder, and appeal. Affirmed.

D. M. Wilson, Ralph F. Lozier, J. B. Hale, and Virgil Conkling, for appellants. R. F. Walker, Atty. Gen., Morton Jourdan, Asst. Atty. Gen., T. M. Bresnehen, J. L. Minnis, E. B. Fields, L. A. Holliday, B. F. Pierce, and Sidney Miller, for the State.

SHERWOOD, J.

The defendants have appealed to this court, having been adjudged guilty of murder in the first degree. The indictment charges the crime to have been committed with a pistol on the body of one Gus Meeks, in Linn county, on the 10th day of May, 1894. As will be inferred from the place of trial, the venue was changed to Carroll county on application of defendants; the basis of their application being the alleged prejudice against them of the inhabitants of the counties of Linn, Sullivan, and Chariton. As preliminary to disclosing a sufficient portion of the evidence to a proper understanding of this cause, it becomes necessary to set forth the prominent features of the region of country where the occurrences to be presently related took place. Milan is the county seat of Sullivan county. It is situate on the Burlington & Kansas City Railroad, some 12 miles by rail, and 14 miles by wagon road, in nearly a north course, from Browning, a town on the south border of Linn county. Cora is a village on the same railroad, about midway between Browning and Milan. At Browning, defendant William P. (commonly called "Bill") Taylor lived; being a lawyer, and cashier of the People's Exchange Bank at that place. Defendant George E. Taylor lived on a farm 4½ miles southeast of Browning. The road leading from that place to Milan goes east until the outskirts of the former town are reached, when it turns north towards Milan. At the point where the road thus turns towards Milan, another road, also a continuation of the road from Browning, continues in a southeasterly course until it reaches the farm of George E. Taylor. At Milan lived Mrs. Martha J. Meeks, the mother of the murdered man. She had lived there since October, 1893, with her daughter-in-law, the wife of Gus Meeks, and their three small children. The scene of the murder was on Jenkins Hill, a point in Linn county, and on the road leading to defendant George E. Taylor's farm, and about 1½ miles from the latter, and about 2 miles southeast of Browning. This statement is sufficiently explanatory of the situation and surroundings to allow the evidence adduced at the final trial to be readily understood. A mistrial had occurred at the March term, 1895, of the Carroll circuit court, and the final trial of the cause occurred at the July term of that year.

Proceeding now to give the substantial portions of what the record discloses, it appears that the defendants were intimate associates of Gus Meeks; that Bill Taylor and Gus Meeks had prior to May 10, 1894, been jointly indicted by the grand jury of Sullivan county for stealing cattle. To this charge Meeks pleaded guilty, and was sentenced to the penitentiary, but at the same term Bill Taylor's case was continued. Meanwhile Bill Taylor had been charged in his home county with the crime of arson, and was indicted for that crime by the grand jury of Linn county; and, before his departure for Jefferson City, Meeks was taken to Linneus, and testified against Bill Taylor in the arson case. Taken afterwards to the penitentiary, Meeks was pardoned out by the governor in April, 1894, in order that he might return...