State v. Welsor

• Decision Date: 14 February 1893
• Citation: 21 S.W. 443,117 Mo. 570
• Parties: STATE v. WELSOR.
• Court: Missouri Supreme Court

21 S.W. 443

117 Mo. 570

STATE v. WELSOR.

Supreme Court of Missouri, Division No. 2.

February 14, 1893.

COMPETENCY OF JURORS — CONSTITUTIONAL LAW — MURDER — EVIDENCE — EXPERTS — NEW TRIAL.

1. Rev. St. 1889, Append. art. 21, § 9, which disqualifies persons from serving as jurors in the city of St. Louis, in criminal cases, because of their inability to read and write the English language, is not in conflict with Const. art. 2, § 28, which guaranties the right of trial by jury, as this provision does not deprive the legislature of the power to prescribe the qualifications of jurors.

2. The aversion of a juror, in a murder case, to a plea of insanity, does not disqualify him, where the trial court is satisfied from the juror's answers that he will give defendant a fair and impartial trial.

3. In a murder trial, where the killing is admitted, and the defense is insanity, it is immaterial whether or not the dying declarations of deceased were properly admitted, where they relate only to the admitted fact of the homicide.

4. Evidence as to specific acts of defendant, for the purpose of showing his disposition, is not admissible, though evidence of his general character for peace and quiet would be.

5. It is proper to overrule a question put to an expert as to the condition of defendant's mind at the time of the homicide, judging from a personal examination which he had made of defendant since the homicide, and on a hypothetical case, as to which he had already expressed an opinion, as the hypothetical case and the personal examination should not be confounded in the same question.

6. After the expiration of the time limited for the state to file counter affidavits to those filed by defendant, showing that one of the jurymen was asleep during the trial, the trial court does not abuse its discretion in refusing leave to defendant to file affidavits in rebuttal.

7. Newly-discovered evidence contradicting one of the state's witnesses as to the fact of dying declarations made by deceased is no ground for a new trial, where defendant admits the killing.

8. Objectionable remarks by the circuit attorney in his closing speech to the jury are not ground for reversal, where the record does not

show that they were objected to at the time, or that the attention of the court was called to them.

Appeal from St. Louis criminal court; James C. Normile, Judge.

Samuel Welsor was convicted of murder, and appeals. Affirmed.

The facts fully appear in the following statement by BURGESS, J.:

At the November term, 1890, of the criminal court of the city of St. Louis, appellant was indicted for murder in the first degree, for shooting and killing one Clementine Manning, with a pistol, in the city of St. Louis, on August 4, 1890. He was tried and convicted of murder in the first degree at the October term, 1891. The indictment is in the usual form, and no objection is taken to it. Motions for new trial and in arrest of judgment were filed in proper time, and were overruled. The case is brought to this court by appeal. One Earnest Alterange, summoned as a juror, stated on his voir dire that he could not read and write the English language, and on the challenge of the state was rejected, over the objection and exception of appellant. One Charles J. Scott, summoned as a juror, stated on his voir dire that he had no prejudice against the prisoner, had never heard of the case, and could go into the jury box without any prejudice against the prisoner, and listen to the evidence, give it its proper weight, and, if reasonably satisfied that defendant was insane, would find him not guilty. Appellant's challenge to this juror was overruled. The evidence tended to show that deceased and her sister lived together on the first floor of a house in the city of St. Louis; that deceased and appellant had once lived together in illicit relation, but that they had quarreled and separated, and that he had not called on her for over a year. On the 4th of August, 1890, about noon, deceased had been to market, and was on her way home, when appellant, who was in a buggy, followed her to her house. He got out of the buggy, and went into the house with her. He shook hands with her sister, who was in the room at the time, and sent her to a neighboring saloon for beer. She was gone but a few minutes, and on her way back she heard several pistol shots, and when she got in the house found deceased lying on the bed in great agony, bleeding, and saw appellant leaving the house by way of the front door, with a pistol in his hand. The first to reach the house was a blacksmith. Appellant asked him to get in the buggy, and ride to the police station with him, and they both entered the buggy, and started in that direction, but had gone but a short distance when a police sergeant met them, and put appellant under arrest. The officer took the pistol from appellant, took him back to the house, in the presence of deceased, who identified him as the man who had shot her. Appellant was asked by the officer why he shot her, and his reply was, "Well, I shot her, and it didn't matter why." The officer remarked, "You have done a good job," to which appellant replied: "Yes, it makes a man good in his business to do a good job." "I shot her, and they can take me out, and put a rope around my neck, as soon as they want to." Deceased died within an hour after she was shot. She received a fatal shot in the back, penetrating the kidneys, liver, small intestines, diaphragm, and left lung. The abdominal cavity and left pleural cavity were found filled with clotted blood. The defense was insanity. Defendant was not sworn as a witness.

Chas. T. Noland, for appellant. Atty. Gen. Wood and Ashley C. Clover, for the State.

BURGESS, J., (after stating the facts.)

1. Numerous causes are assigned by appellant's counsel why the case should be reversed. It is urged that the trial court committed error in excusing from the jury, over defendant's objections, one Alterange, who answered, on his voir dire touching his qualifications as such juror, that he could not read and write the English language. The contention is that section 9, art. 21, Append. Rev. St. 1889, p. 2162, which disqualifies persons from serving as jurors in the city of St. Louis, in criminal cases, because of their inability to read and write the English language, is in conflict with article 2, § 28, of the constitution of this state, and that unless section 9, supra, is valid, the court had no power or authority to excuse him on the ground stated. The article of the constitution referred to simply guaranties to every one the right of trial by jury, — nothing more. It does not in any way undertake to prescribe the qualifications of jurors in the city of St. Louis. If there was no statute defining the qualifications of jurors in the city of St. Louis, then we concede that it would have been the exercise of doubtful authority for the court to exclude a person possessing other necessary qualifications from jury service, over the objections of defendant, because he could not read and write the English language. But we are relieved from any embarrassment of that kind in this case, as the qualifications of jurors are defined by section 9, supra, and Alterange, who was examined as a juror, came within its express provisions. The legislature had the same right to provide that one who cannot read and write the English language shall not be a qualified juror as it had to say that lawyers, doctors, clergymen, and persons of different trades, occupations, and stations in life, should not be qualified to sit on juries. Section 3240, Rev. St. 1889, provides that all proceedings and records in any court of record shall be kept in the English language, and section 4208 provides that in the trial of criminal cases the court must instruct the jury in writing. These provisions of the statute are mandatory, and when we consider that all of our proceedings in courts are kept in the English language; that the jury have the right to take the instructions of the court to their room when they retire to consider of their verdict, — it would seem to furnish a conclusive argument of the wsidom of the legislature in passing the act disqualifying persons as jurors who cannot read and write the language in which they are written. State v. Thompson, 83 Mo. 257. Not only this, but section 9, supra, makes it the duty of the court to excuse from jury service all persons who are not qualified to act as such, according to its provisions. There is no apparent conflict, so far as we are able to see, between section 9, supra, and article 2 of the state constitution, nor do we think there is any in fact.

2. It is also insisted that the court committed error in retaining one Scott on the panel of jurors against the objections and exceptions of appellant. Scott, on his voir dire, stated that he did...