State v. Underwood

• Decision Date: 31 October 1882
• Citation: 76 Mo. 630
• Parties: THE STATE v. UNDERWOOD, Appellant.
• Court: Missouri Supreme Court

76 Mo. 630

THE STATE

v.UNDERWOOD, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Mississippi Circuit Court.--HON. J. D. FOSTER, Judge.

AFFIRMED.

J. B. Dennis for appellant.

D. H. McIntyre, Attorney General, for the State.

NORTON, J.

When this case was originally submitted to this court for decision the following opinion was rendered, viz:

The defendant was indicted in the circuit court of Mississippi county at its August term, 1881, for murder in the first degree in killing one Belle Lucas. After being duly arraigned he was put upon his trial at the August term, 1882, of said court, and found guilty of murder in the first degree. From this judgment of conviction he has appealed, and his counsel have assigned various grounds of error which will be considered in the order they have been made.

1. MOTION FILED IN TERM: TIME: construction of statute.

It appears from the record that on Saturday preceding the commencement of the August term, 1882, defendant was furnished with a copy of the indictment and that on Monday following, it being the first day of said term, the defendant was arraigned and given till the next day to plead. On the next day he filed his motion to quash the indictment, alleging as grounds therefor that the indictment did not allege that the instrument used in inflicting the mortal wounds upon deceased was a deadly weapon, and that it did not distinctly set forth the time and place of death. This motion was taken up and disposed of against the objection of defendant on the same day it was filed.

It is contended that the court erred in determining the motion on the same day it was filed, inasmuch as section 3558, Revised Statutes, provides that “motions in a cause filed in term shall be filed at least one day before they may be argued or determined.” It is, we think, evident that the section above quoted was intended to give the adverse party to the motion time to consider it so that he should not be taken by surprise, and this has been so held in the case of Cashman v. Anderson, 26 Mo. 67. When such adverse party does not claim the benefits of said statute, but consents to the hearing and disposition of a motion on the same day it is filed, we cannot see upon what principle the party filing it can complain and assign the action of the court in considering it as error, especially so, when as it is in this case manifest, that the court made the right ruling in the disposition of it.

The grounds assigned in the motion to quash were not well taken, as the first count of the indictment expressly alleges that the gun used was a deadly weapon, and the time and place of the death of deceased in that, as well as the other two counts, are clearly and distinctly stated and the venue properly laid in all of them.

2. CONTINU ANCE: requisites of affidavits.

On Wednesday, the third day of the term, defendant filed an application for a continuance or postponement of the cause till October, it having been previously announced that an adjourned term of court would be held at that time. This application was overruled, and we think properly, because it did not comply with the requirement of section 1884, Revised Statutes, which among other things necessary to be contained in a motion for continuance, provides, that “if it is for an absent witness, the affidavit must give his name and show where he resides, or may be, and the probability of securing his testimony and within what time, and what facts he believes the witness will prove, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured.” * * The affidavit, although it discloses on its face that defendant knew the names of the witnesses living in Mississippi county, who were absent, fails to give the names of any of them. It does give the name of one Lucas and states that he was a non-resident, but does not state where he resided or might be found, nor does it state that he did not know his place of residence, but on the contrary that since he had been informed of his place of residence he had not time to take his deposition; nor is it stated anywhere in the affidavit that he believed the facts to be true that he expected to prove by these witnesses.

Although the affidavit was insufficient because of its non-compliance with the above statute, the prosecuting attorney gave the defendant the benefit of his admission that the witnesses if present would swear to the facts stated and that defendant had borne a good character from his boyhood up to the present trouble.

3. CONDUCT OF TRIAL: indiscreet remark of judge.

It also appears that defendant was introduced as a witness, and, after stating that he saw deceased that morning about seven o'clock with Charles Barnes, and asked her to get down, saying he wanted to talk with her, he was proceeding to detail a conversation of the most disgusting character, when the judge of the court said, “Stop, witness, I don't intend to have any more such stuff;” whereupon some discussion arose between counsel, and the witness was allowed to proceed, and, again repeating the same vulgar language, the judge said, “Stop, witness, I don't intend to have the jury listen to any more such manufactured stuff;” and thereupon counsel for defendant said he hoped his honor would not comment on the evidence before the jury, and the court at once disclaimed any intention to reflect either upon witness or counsel, and stated that the witness might proceed, and he would instruct the jury as to his evidence. Counsel for defendant then declined to further examine witness and asked permission of the court to withdraw him from the witness stand, which was granted, and the witness withdrawn. With the distinct disclaimer made by the judge when his attention was called to the remarks made under circumstances calculated to excite them, and the further statement that the witness could proceed and he would instruct the jury as to his evidence, we are unwilling to say that an indiscreet remark made by a judge in the excitement of a trial, which is immediately withdrawn, would be sufficient to justify an interference with a judgment which the evidence supports and when it does not clearly appear that the defendant was prejudiced thereby.

4. OFFICER IN CHARGE OF JURY: oath.

During the progress of the trial and before the case was finally submitted to the jury, the defendant moved the court to discharge the jury because the deputy sheriff having them in charge (who had taken the customary oath for summoning jurors at the opening of the court) was not also sworn as provided in section 1910, Revised Statutes. This request the court refused and also refused to have the deputy sworn till the argument of the cause had closed. It is insisted that this action was erroneous.

The said section provides “that when the argument is concluded the jury may either decide in court or retire for consideration. They may retire under the charge of an officer who, in case of a felony, shall be sworn to keep them together in some private or convenient room or place, and not permit any person to speak or communicate with them, nor do so himself, unless by order of court, or to ask them whether they have agreed upon their verdict; and when they have agreed, he shall return them into court, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations.” After the argument was closed, and before the jury retired, the officer having them in charge was sworn in strict compliance with the requirements of said section.

The instructions given on behalf of the State were also excepted to. It is unnecessary to say more of the exceptions taken, than that the instructions were similar to those given in the case of the State v. Talbott, 73 Mo. 347, which were approved.

5. CHARACTER OF PRISONER: weight of evidence.

The defendant also excepted to the refusal of an instruction asked on his behalf, to the effect that in a doubtful case, when the party charged had established a good character, the law presumed that he would not commit the offense charged. This instruction was properly refused, and the question of character was fairly submitted...