State v. Walton

Decision Date31 October 1881
Citation74 Mo. 270
PartiesTHE STATE v. WALTON, Plaintiff in Error.
CourtMissouri Supreme Court

Error to Callaway Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

The instructions referred to in the opinion, are the following:

11. Defendant asks the court to instruct the jury, that if they believe from the whole evidence in the cause that the act of shooting was done by defendant with deliberation, then he is not guilty of murder in the second degree.

12. The jury should find the defendant guilty of no offense that the whole evidence in the cause does not satisfy their minds to a moral certainty he committed.

13. If the jury believe from the whole testimony to a moral certainty, that defendant killed deceased at the time and place charged in the indictment, willfully, deliberately, premeditatedly and with malice aforethought, the jury cannot find him guilty under the indictment, and they will find a verdict of not guilty.

1. The law presumes the defendant not guilty, and the jury will find a verdict of not guilty unless their minds are satisfied, from the whole evidence in the cause, to a moral certainty and beyond a reasonable doubt, that he is guilty. A reasonable doubt, to authorize an acquittal, must be a substantial doubt touching his guilt, and not a mere possibility of his innocence.

5. It is not alone the weight or preponderance of the testimony which will warrant a verdict of guilty in this case, but before the jury can find a verdict of guilty they must be satisfied from the whole evidence in the cause to a moral certainty that defendant is guilty.

Boulware & McKinney for plaintiff in error.

The court should have sustained defendant's challenge to Terry and Sallee, as jurors. They were not impartial, unbiased or indifferent. They each had formed and expressed an opinion, and had such opinion when sworn. That opinion was so fixed, positive and absolute, that it would have required evidence to change it. The opinion was not a hypothetical one. Sallee had often expressed his-- Terry more than fifty times. U. S. v. McHenry, 6 Blatch. 503; U. S. v. Hanway, 2 Wall. Jr. 143; U. S. v. Woods, 4 Cranch C. C. 484; Const. of Mo., § 22, art. 2; R. S. 1879, § 1897; Fouts v. State, 7 Ohio St. 471; Frazier v. State, 23 Ohio St. 551; Carroll v. State, 5 Neb. 31; Curry v. State, 4 Neb. 548; Palmer v. State, 4 Neb. 75; People v. Weil, 40 Cal. 268; People v. Johnston, 46 Cal. 78; People v. Gehr, 8 Cal. 629; State v. Clark, 42 Vt. 629; Black v. State, 42 Tex. 379; Jackson v. Comm., 23 Gratt. 919; State v. Potter, 18 Conn. 171; People v. Mather, 4 Wend. 241; People v. Stout, 4 Park. C. R. 110; Cancemi v. People, 16 N. Y. 501; People v. Mallon, 3 Lansing (N. Y.) 232; Blake v. Millspaugh, 1 John. (N. Y.) 315; O'Brien v. People, 36 N. Y. 276; People v. Bodine, 1 Denio ; People v. Honeyman, 3 Denio 121; Alfred v. State 37 Miss. 296; Cotton v. State, 31 Miss. 501. Logan v. State, 50 Miss. 269; Helms v. State, 13 Miss. 500; State v. Pike, 49 N. H. 399; State v. Howard, 17 N. H. 194; Comm. v. Webster, 5 Cush. 295; Comm. v. Knapp, 9 Pick. 496; Comm. v. Buzzell, 16 Pick. 153; Staup v. Comm., 74 Pa. St. 458; Gray v. Deople, 26 Ill. 344; Neeley v. People, 13 Ill. 685; Gardner v. People, 3 Scam. 83; Wright v. State, 18 Ga. 383; State v. Bornwell, 2 Harrington (Del.) 529; State v. Anderson, 5 Harrington 493; Osiander's case, 3 Leigh 780; Heath v. Comm., 1 Robinson (Va.) 735; Quesenbury v. State, 3 Stew. & Port. 308; Greenfield v. People, 74 N. Y. 285. The instructions asked by defendant, numbered 11, 12 and 13 should have been given. These instructions were proper and legal, and were authorized by the testimony. Without them the jury did not have the law of the case, hence found a verdict not authorized by the law or testimony. State v. Bryant, 55 Mo. 75; State v. Joeckel, 44 Mo. 234; State v. Wyatt, 50 Mo. 309; State v. Sloan, 47 Mo. 604; State v. Lane, 64 Mo. 319; State v. Alexander, 66 Mo. 148.

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

Terry and Sallee were competent jurors. 12 Mo. 223; 32 Mo. 346; 70 Mo. 491; 71 Mo. 454; 71 Mo. 288; State v. Davis, 29 Mo. 391; R. S. 1879, § 1897; Cox v. People, 80 N. Y. 500; State v. Williams, 3 Stew. (Ala.) 454, 465; Rice v. State, 7 Ind. 332, 336; State v. Sater, 8 Iowa 420; Sanchez v. People, 4 Park. Crim. R. 535, 553; O'Connor v. State, 9 Fla. 215, 217, 221; People v. Brown, 48 Cal. 253; State v. Lawrence, 38 Iowa 51; State v. Bryan, 40 Iowa 379. Bell was disqualified to serve as a juror. R. S. 1879, § 1894. Instructions 11 and 13 were properly refused as being irrelevant to the charge in the indictment. State v. Fritterer, 65 Mo. 422.

NORTON, J.

Defendant was indicted in the Callaway county circuit court in May, 1880, for murder in the second degree, for killing one Louis Meyers. Being put upon his trial he was found guilty as charged, and his punishment assessed at ten years' imprisonment in the penitentiary. The cause is before us on writ of error sued out by defendant, and the chief errors assigned are that the court erred in overruling defendant's challenge to certain jurors, in excluding one juror from the panel and in giving and refusing instructions.

William B. Terry, one of the jurors summoned by the sheriff, on his voir dire examination, stated that he had formed and expressed an opinion; that such opinion was formed from what he had read in the local papers, and from what he had heard different parties say; that he had read in the papers what purported to be a substantial statement of the testimony taken before a justice of the peace on the trial of the defendant; that several parties who were present at the trial before the justice gave him a substantial statement of what the testimony was; that different parties who professed to know the facts in regard to the difficulty talked to him about it and told him what they knew; that from these matters he had formed and expressed an opinion more than fifty times; that he had the opinion then; that he had talked with no one who claimed to have seen the difficulty, nor with any one who was present and saw the difficulty; that while it would take evidence to change such opinion, he thought he could decide the case and find a verdict from the testimony introduced on the trial free from all prejudice and bias. William B. Sallee, another one of the jurors summoned, stated that he had formed and expressed an opinion from reading the local papers, which purported to give a substantial statement of the testimony given before the justice of the peace on the trial of the cause; that he still retained it, and that it would require testimony to remove it; that he could, as a juror, hear and try the issue and find a verdict in accordance with the evidence introduced, independently, without bias, notwithstanding such opinion. Defendant challenged both these jurors for cause, which was overruled, and this action of the court, it is insisted, was erroneous.

1. COMPETENCY OF JUROR, WHO HAS FORMED AN OPINION.

The question thus presented is not one of first impression in this court, but has heretofore been decided adversely to the views of defendant's counsel, and in accordance with the above ruling of the circuit court in the cases of Baldwin v. State, 12 Mo. 223; State v. Rose, 32 Mo. 346; State v. Core, 70 Mo. 491; State v. Brown, 71 Mo. 454; State v. Barton, 71 Mo. 288. We might, therefore, dismiss the subject by saying that these cases settled the question in this case, but in view of the earnestness and ability displayed by counsel for defendant in endeavoring to show that these decisions are against the weight of authority, and in view of the fact that in the last decision made the court was divided upon the question; and in view of the importance of the subject, we deem it not only respectful to counsel, but altogether appropriate to review the authorities of other states as affecting the question.

The point settled by the cases decided by this court, and above referred to, and which we are asked to reconsider, is, that a juror who, upon his examination touching his qualifications as such, answers that he had formed an impression or opinion as to the guilt or innocence of the accused, that such opinion has been formed either from rumor or newspaper reports, or both, which it would require evidence to remove, is not an incompetent juror, provided it further appears to the satisfaction of the court that such opinion will readily yield to the evidence in the case, and that such juror, notwithstanding such opinion, will determine the issue upon the evidence adduced on the trial, free from prejudice or bias. It is claimed by counsel that this view is not sustained by the weight of authority, and we, therefore, give the result of our investigation of the authorities to which we have been cited, and others which have fallen under our observation.

In the case of Reynolds v. United States, 98 U. S. 145, a juror stated that he believed he had formed an opinion as to the guilt or innocence of the accused, though not upon evidence produced in court; that he still entertained the opinion; that he did not think it would influence his verdict. The court held that the juror was competent, Chief Justice Waite, who delivered the opinion, observing that all the authorities “unite in holding that the opinion must be founded on some evidence, and be more than a mere impression. Some say that it must be positive, (2 Gabbett Crim. Law, 391;) others that it must be decided and substantial, ( Armistead's case, 11 Leigh 659;) others fixed, ( State v. Benton, 2 Dev. & B. 196;) and others deliberate and settled, ( Staup v. Commonwealth, 74 Pa. St. 458). All concede that if hypothetical only, the partiality is not so manifest as to set the juror aside. * * The theory of the law is, that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and...

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    ...and Sec. 722 only to civil cases. As stated, the Vermont doctrine using the civil rule extends only to first cousins. But State v. Walton, 74 Mo. 270, 285, held a juror was disqualified under (now) Sec. 4057, who was a third cousin of the defendant in a criminal case — a relationship in the......
  • State v. Thomas
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