State v. West

• Decision Date: 30 April 1879
• Citation: State v. West, 69 Mo. 401 (Mo. 1879)
• Parties: THE STATE v. WEST, Plaintiff in Error.
• Court: Missouri Supreme Court

69 Mo. 401

THE STATE

v.WEST, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1879.

Error to Cooper Circuit Court.--HON. GEO. W. MILLER, Judge.John Cosgrove and W. Y. Pendleton for plaintiff in error.

J. L. Smith,Attorney-General, and J. H. Johnson, Prosecuting Attorney, for the State.

HENRY, J.

Defendant was indicted at the November term, 1878, of the circuit court of Cooper county, for the murder of a man whose name was to the jurors unknown At the January term, 1879, of said court, he was tried and convicted of murder in the first degree, and sentenced to be hanged.From the judgment of the circuit court, he has appealed, assigning numerous errors as having occurred in the trial, among them: First, The rejection by the court for incompetency of the following persons summoned as jurors, viz.: W. Parker, A. Santer, J. P. Moore, Geo. Fluke and W. H. Moore.Second, That the conviction was obtained without proof that the homicide was committed in Cooper county.Third, That the court erred in declaring that Samuel L. Ewing was a competent witness, and permitting him to testify against defendant.Fourth, That the jury was furnished with intoxicating liquor while the trial was progressing, after they had retired to consider of their verdict.The other error assigned was that instructions were given for the State which should have been refused, and others asked by defendant were refused, which should have been given.

1.COMPETENCY OF JUROR.

With respect to the rejection, by the court, of persons summoned as petit jurors, the record shows that they were asked, on their examination on the voir dire, if they would convict one accused of murder on circumstantial evidence alone.Except A. Santer, they answered they would not, and he, that “he had scruples in doing so.”In Wagner's Statutes, sections 9,10,11,12and13, pages 1102,1103, are enumerated certain disqualifications, either of which is a sufficient ground for challenging a juror, and the fact that a person would not find one accused of murder guilty on circumstantial evidence alone, is not among these disqualifications.Hence, it is contended by defendant's counselthe court erred in allowing that fact to be sufficient cause for challenging the jurors.

A juror should be in condition of mind to do exact justice between the State and the accused.The State has the same right as the defendant to an impartial jury, and if a juror, on his examination on the voir dire, should admit that he bore malice toward the accused, and would be reluctant to acquit him, even though he should not be proven guilty by the State, he should be rejected by the court as an incompetent juror, notwithstanding the statute does not declare the existence of such malice, on the part of the juror, toward the prisoner, a disqualification.In the matter of selecting a jury in a criminal cause, no advantage is given to the accused, except in the number of peremptory challenges allowed him.In other respects, there is an equality of right, and it is difficult to find any sufficient reason for requiring the State to submit its cause to a jury composed of men who have determined in advance to acquit, which would not equally justify a requirement of the accused that he should submit to be tried by a jury predetermined to convict him.That the fact which the interrogatory proposed to elicit was not included among the disqualifications enumerated in the statute, is not to be regarded as an expression of the legislative will, that it should not render one incompetent to sit as a juror in a case, is established by Lyles v. The State, 41 Texas 172; Lester v. The State, 2 Texas Court of Appeals 432;Chouteau v. Pierre,(of color,)9 Mo. 3.In the latter case, before the jury was sworn, the defendant, Chouteau, asked leave to inquire of the jurors when sworn to answer questions, if any of them felt bound in conscience to find a verdict in favor of the freedom of plaintiff, notwithstanding the law might hold him to slavery.The circuit court refused his request, but the Supreme Court held that the court should have permitted the defendant to ask the question, and that an affirmative answer would have been sufficient ground for excluding a juror so answering from the panel.The statute of 1845 prescribed the causes for which a juror might be challenged, but that a juror felt bound in conscience to find a verdict in favor of the freedom of a slave, notwithstanding the law held him in slavery, was not one of these causes.The decision, therefore, in Chouteau v. Pierre, is a direct authority in support of the action of the circuit court in the premises.

2.THE VENUE OF A HOMICIDE.

With respect to the second point made by defendant's counsel, while no witness stated directly, that the homicide was committed in Cooper county, facts and circumstances were established tending to show that it occurred in that county, and the question whether it did or not, having been submitted to the jury by the court in a proper instruction, and they having found by their verdict that the murder was committed in Cooper county, there is nothing to justify us in disturbing the verdict on that issue.The venue is to be established like any other material allegation.It was competent to prove the offense to have been committed in Cooper county, by circumstances which led to that conclusion, although no witness expressly stated that it occurred in Cooper county.

3. WITNESS.

As to the third alleged error, Sam.L. Ewing was a competent witness, and that the prosecuting attorney had promised Ewing, before he testified, that he would dismiss an indictment pending against him in the Cooper circuit court, after he should have testified in the case against West, was a circumstance for the consideration of the jury, in determining what credit they would give to his testimony, but did not affect Ewing's competency as a witness.There is no pretense that the promise was made to induce him to testify falsely.IIe had informed the prosecuting attorney before the alleged, or any promise was made, what he would testify to, and the evidence and status of this witness before the jury is somewhat analogous to that of an accomplice, who testifies for the State against his associate in crime.

4.VERDICT: intoxicating liquor in...