State v. Waters

• Decision Date: 26 January 1876
• Citation: 1 Mo.App. 7
• Parties: THE STATE OF MISSOURI, Respondent, v. MEREDITH WATERS, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 7

THE STATE OF MISSOURI, Respondent,

v.MEREDITH WATERS, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 26, 1876.

1. An indictment ending with the words “against the peace and dignity of the State, and contrary to the form of the statutes in such cases made and provided by the State,” is not bad, as in violation of the constitutional requirements that all indictments shall conclude “against the peace and dignity of the State.”

2. A defendant, indicted for murder, appeared in court and agreed with the State's attorney that his trial might proceed on the next day but one; and on the next--being the intermediate--day, demanded a list of the jurors, to be furnished him forty-eight hours before the trial. The list was delivered to him on the same day. Held, that in agreeing upon the day for trial he waived his rights as to time, and could not demand a postponement because the jury list was not furnished him forty-eight hours before the trial.

3. In a trial for murder the defendant cannot be compelled to make his peremptory challenges until a panel of forty competent jurors is obtained. The State cannot, by waiving her peremptory challenges, justify a reduction of the panel, and it is error in the court, upon such waiver, to require the defendant to select the jurors from a panel of thirty-two. (GANTT, P. J., dissenting.)

Per GANTT, P. J., dissenting: The defendant could not be prejudiced by a reduction of the panel of jurors to the number from which he would otherwise make his peremptory challenges, after the challenges made by the state, when such reduction results from the State's declining to make any challenges. There was no error in so ruling, and the judgment ought to be affirmed.

APPEAL from Lincoln Circuit Court.

Reversed and remanded.

McKee & McFarland, for plaintiff in error, cited: Mo. Const., Art. 6, sec. 26; State v. Lopez, 19 Mo. 255; Clements v. State, 4 W. Va. 755; Wag. Stat. 800, sec. 24, p. 1102, secs. 7, 8; State v. Klinger, 46 Mo. 224; State v. Buckner, 25 Mo. 168; State v. McCarron, 51 Mo. 27; State v. Holme, 54 Mo. 153.

Josiah Creech, for defendant in error, cited: State v. Hayes, 23 Mo. 287; State v. Klinger, 46 Mo. 224; Wag. Stat. 1090, sec. 27.

LEWIS, J., delivered the opinion of the court.

The defendant was convicted upon an indictment for murder in the first degree. The indictment concluded with these words: “Against the peace and dignity of the State, and contrary to the form of the statutes in such cases made and provided by the State.”

Defendant moved unsuccessfully in arrest of judgment, alleging this form to be in violation of the constitutional requirement that “all indictments shall conclude ‘against the peace and dignity of the State.” He here insists that, although these words appear near the end, yet, as they are not the last or concluding words, the indictment is bad.

The “conclusion” of an indictment is one of its formal parts or divisions, with which lawyers are generally familiar, and to which reference was made by the framers of the Constitution. It indicates the power or authority against which the facts charged constitute an offense. For such indication, it cannot be necessary that any particular word shall be the last in the indictment. At common law the conclusion was, as to some crimes, “ contra formam statuti;” and, as to others, “ contra pacem et dignitatem Regis.“” It was never imagined that either of these forms constituted any the less a proper conclusion because one or more words, not altering the sense, were superadded. In other states, which have a constitutional provision similar to ours, sundry efforts have been made to exact a literal transcript of the words, without addition or omission, as indispensable. In a few instances, not strictly analogous to the present case, the exaction was sustained. But the array of authorities holding the opposite view is so overwhelming as to leave no license for a further discussion of the question. The general doctrine is that, if the intent of the Constitution be substantially responded to in this part of the indictment, a literal transcript of the formula is not essential. It is further held that, if the formula be present, other words, not perverting the meaning, will be treated as surplusage. In the light of these rules all objections to the present indictment vanish, excepting, perhaps, such as refer to possible violations of taste. Zarresseller v. The People, 17 Ill. 101; Anderson v. The State, 5 Ark. 444; Commonwealth v. Young, 7 B. Mon. (Ky.) 1; State v. Kean, 10 N. H. 347; State v. Yancey, 1 Const. Rep. S. C. 237. In State v. Lopez, 19 Mo. 255, neither the words “against the peace and dignity of the State,” nor any equivalent, appeared. The same is true of other cases cited for defendant. In Lemons v. TheState, 4 W. Va. 755, the expression “W. Virginia” was used, instead of the name “West Virginia,” as prescribed in the Constitution; wherefore the indictment was held to be bad. This was no case of surplusage. It was the rejection of a name given by the Constitution, and the adoption of a different one. We find no error in the ruling of the Circuit Court on the point under consideration.”

It appears from the record that, on October 6, 1875, the defendant appeared in court, waived an arraignment, and agreed with the State that his case should be tried on the 8th; that on the 7th he made a formal demand for a list of the jurors, to be furnished him “forty-eight hours before the trial.” The list was then furnished, but on the 8th he declared himself not ready for trial, because forty-eight hours had not elapsed since his receipt of the list of jurors. The court disregarded the objection, and directed the trial to proceed, to which ruling the defendant excepted.

In State v. Klinger, 46 Mo. 224, Judge Wagner, construing the provision (Wag. Stat. 1102, sec. 8) upon which this claim was founded, says: “It is simply a privilege which the statute extends to the accused for his benefit, and, if he does not make the demand or require the list, he is presumed to have waived it.” It seems unquestionable that, if the accused may waive the entire privilege, he may, with equal effect, waive one of its elements--that of time, for instance. The defendant in this case, forty-eight hours before the time of trial fixed by his own agreement, and for yet twenty-four hours later, made no demand for a list of the jurors. He waived it, then, up to twenty-four hours before the trial, when his demand was complied with as soon as made. It would be strange, indeed, if he could be allowed thus to mislead the State by a waiver and a consent to trial, only to withdraw the waiver at convenience. By his silence, when the day of trial was agreed upon, he at least waived the element of time in his right to be furnished with the jury list. He could then assert no right until demand actually made; and from that time, as the record shows, he was allowed no cause of complaint. The ruling on this point was manifestly proper.

In another matter of exception the action of the Circuit Court was less free from objection. Upon proceeding to trial of the cause, as the record shows, “the court ordered the clerk to deliver to the defendant a list of thirty-two qualified jurymen from which to select a jury, the State having waived her challenges. To which order of the court, compelling the defendant to select a jury from said list containing only thirty-two qualified jurors, the defendant then and there excepted.”

In murder cases, the State is entitled to eight and the accused to twenty peremptory challenges. Section 7, Wagner's Statutes, page 1102, says:

“There shall be summoned and returned, in every criminal cause, a number of jurors equal to the number of peremptory challenges, and twelve in addition; and no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained.”

According to this, forty competent jurors were necessary to make up the panel in the present case.

It is argued that, by the State's surrender of her eight challenges, there was left to the defendant his full number of twenty, before the jurors were reduced to twelve. Admitting this to be true, I do not know by what authority we can accept proposed results as an excuse for disobeying a positive rule of law. When the law prescribes a specific method by which a thing must be done, we have no right to reject that method and adopt a different one merely...