State v. Weber
| Decision Date | 31 October 1855 |
| Citation | 22 Mo. 321 |
| Parties | THE STATE, Respondent, v. WEBER, Appellant. |
| Court | Missouri Supreme Court |
1. The separation of a jury, in a criminal case, (an indictment for an assault with intent to kill,) after having written down and sealed their verdict and delivered the same to the officer in charge of them, though without consent and without the order of court, is not such misconduct as will authorize the Supreme Court to reverse and remand the cause.
2. Where, after a prisoner has announced himself ready for trial, and a witness for the prosecution has been examined in chief--all the witnesses for the prosecution having been sworn-it is discovered that the prisoner has never been formally arraigned, and by order of court he is then arraigned and pleads not guilty, and objects to any further proceeding in the cause, asking that he may be discharged; held, 1st, that it is not erroneous, to so cause him to be arraigned; 2d, that it is not erroneous, the jury being re-sworn, to proceed to examine the witnesses for the prosecution, without causing them to be re-sworn.
Appeal from St. Louis Criminal Court.
The facts sufficiently appear in the opinion of the court.
Kribben and Jecko for appellant.
1. The court below erred in arraigning the defendant after the jury had been empannelled and sworn, and the trial had been proceeded with; and the discharging of the jury, without their rendering a verdict after the defendant had been put upon his trial under a charge of felony, is tantamount to an acquittal. That an arraignment is necessary, see 1 Chitty Crim. Law, 418; 2 Hale, 216, 218; 3 Mod. 265; 1 Show. 131; Com. Dig. tit. Indictment, M.; Hale's P. C. 293. It was erroneous to permit the same jury to be sworn after the arraignment, and after they had heard the evidence of the prosecuting witness. So also to permit the witnesses for the prosecution to be examined without being resworn. Up to the arraignment, the proceedings were illegal. 2. The separation of the jury, under the circumstances, is error.
H. A. Clover, for the State, cited the following authorities: 8 Ohio, 480; 11 Id. 474; 13 Id. 492; 15 Id. 82; 8 Mo. 158, 166.
The defendant was indicted for an assault with the intent to kill one Frederick Kolb. The indictment contained three counts; the first count charged the assault and stabbing to have been done by the defendant, with malice aforethought, with intent to kill. The second count with stabbing, with intent to kill; the same as the first count, leaving out the charge of malice. The third count charges that the defendant feloniously and willfully, and by his act and procurement, did strike, stab, penetrate and cut the said Kolb, giving to him one wound, of the length of one inch, and of the depth of four inches; charging that the said Frederick Kolb was then and there in manner and form aforesaid, wounded, and did receive great bodily harm by the felonious act of him, the said George Weber.
There was a trial and verdict of guilty, under the third count, and punishment assessed to six months' imprisonment in the county jail and five hundred dollars fine. A motion for a new trial was made and overruled, and an appeal taken to this court.
The bill of exceptions shows that when the case was called, the State, by her circuit attorney, and the defendant, who was personally present with his counsel, declaring themselves ready for trial, a jury was lawfully empannelled to try the same. After the trial had progressed and the State had examined in chief the first witness, it was discovered that the defendant had not been formally arraigned. Thereupon the court ordered that the defendant should be formally arraigned, which was done accordingly; and thereupon the defendant pleaded not guilty. The court then asked the defendant if he was ready to proceed with his trial immediately, to which he answered, “as ready as he was before.” The defendant did not wish to be understood as waiving any advantage the alleged illegality of the proceedings may allow him. He insisted upon all his legal rights in the premises, and protested against any further proceedings in the case against him, and moved that he be discharged from the offence and go hence without day. The court overruled this motion, and the defendant excepted. The jury were thereupon re-sworn to try the issue, and the witness re-examined in chief, and passed over to the defendant for cross-examination. The bill of exceptions, in one part, asserts that after the jury were sworn the first time, and before any testimony was given, all the witnesses for the State were duly sworn, but were not resworn; yet the same bill of exceptions, when each witness is introduced, asserts that the witness “having been sworn, testified” as follows. The same entry is made in regard to the defendant's witnesses. Sometimes the word “duly” is inserted before the word sworn; thus, ““having been duly sworn.” The objection appears at the time to have been made by the defendant, and, for aught that appears, the witnesses were properly sworn; at least the record may be so considered. The party complaining must show by his bill of exceptions, beyond doubt, what he complains of, to be an act of the court on the record, and not leave it a matter for this court to decide, whether the thing be so or not--not leave it in doubt.
The bill of exceptions also shows that the jury, after they had retired to consider of their verdict, and were in charge of an officer of the court, the court having adjourned over until the next day, did agree on their verdict, and did write down and seal it, and deliver it to the marshal to be kept, and then, without an order of the court or the consent of any one of the parties, did disperse until the hour of meeting of the court in the morning, when they again met in court; and the marshal, in their presence, handed over their verdict to the clerk, and it was read and received as their verdict by the court.
These various matters are alleged by the court for the defendant, in this court, as grounds for reversal of the judgment of the criminal court.
So far as regards the dispersing of the jury, after making up their verdict, sealing it and delivering it to the officer who had charge of them, and then separating until next morning and meeting in court to render their verdict, this act alone will not be regarded as any sufficient reason for setting the verdict aside. The mere dispersing of the jury is not enough to authorize the court to disregard their verdict. This point has been often ruled thus by this court. In two cases, decided at Jefferson...
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State v. O'Kelley
...was sworn the information was read and before any evidence was introduced the defendants announced that "they plead not guilty." In State v. Weber, 22 Mo. 321, it was held that where plea was entered until after both jury and witnesses were sworn that the plea might then be entered and that......
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Browning v. State
... ... the witnesses already examined should have been re-examined ... Had this been done the omission of the arraignment and plea ... before the selection of the jury would not have been ... available. (Weaver v. State, 83 Ind. 289; State ... v. Weber, 22 Mo. 321; Disney v. Commonwealth, 9 ... Ky. L. Rep. 413, 5 S.W. 360.) For the error indicated, the ... judgment is reversed and the cause remanded ... ... REVERSED AND REMANDED ... --------- ... [*]Allyn v. State, 21 Neb. 593, 33 ... N.W. 212; State v. Greene, 66 Iowa ... ...
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State v. O'Kelley
...sworn, the information was read, and, before any evidence was introduced, the defendants announced that "they plead not guilty." In State v. Weber, 22 Mo. 321, it was held that, where no plea was entered until after both jury and witnesses were sworn, the plea might then be entered, and tha......
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Browning v. State
...omission of the arraignment and plea before the selection of the jury would not have been available. Weaver v. State, 83 Ind. 289;State v. Weber, 22 Mo. 321;Disney v. Com. (Ky.) 5 S. W. 360. For the error indicated, the judgment is reversed, and the cause remanded. Reversed and ...