State v. Wiley

• Citation: 109 Mo. 439,19 S.W. 197
• Parties: STATE v. WILEY.
• Decision Date: 28 March 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 197

109 Mo. 439

STATE v. WILEY.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

CRIMINAL LAW — SUMMONING JURY — CONSTITUTIONALITY OF LAW — CREATING COURT — COLLATERAL ATTACK.

1. Where the legislature, by an act constitutional on its face, creates a criminal court for a county, it will be conclusively presumed, in a collateral attack upon the constitutionality of the act, that the county had a population of over 50,000 inhabitants, and that the act did not violate Const. art. 6, § 31, prohibiting the legislature from establishing a criminal court in any county not having such a population.

2. Where, in a criminal case, on objection of defendant to the sheriff's acting, on the ground that he was prejudiced, the court ordered the coroner to act in his place, the fact that the coroner, in summoning a jury, summoned some persons who were on the regular panel which had been summoned by the sheriff, is not ground for reversal of a judgment of conviction, where the jurors so summoned were not challenged.

Appeal from criminal court, Greene county; M. OLIVER, Judge.

Indictment against Sherman Wiley for larceny. From a judgment of conviction, defendant appeals. Affirmed.

The other facts fully appear in the following statement by GANTT, P. J.:

The defendant was jointly indicted in the criminal court of Greene county, at its July term, 1889, with William Haynie and H. M. Tutor, for grand larceny; the indictment charging that said parties on the 18th day of December, 1888, in said county, feloniously stole, took, and carried away 26 head of fat hogs, black and white spotted, of the value of $300, the personal property of J. M. Williams and S. T. Whitlock. On the 20th day of July, he was arraigned and refused to plead to said indictment, whereupon the court entered a plea of "Not guilty." On the 16th day of August, upon an application of the defendant, a severance was granted him. On the said day, said defendant filed an affidavit alleging the incompetency of Joseph Dodson, sheriff of Greene county, to act in this case, on account of his personal prejudice against the defendant, and asked the court to appoint the coroner of Greene county, or some other person, to act as sheriff pending this trial. Whereupon the court ordered the said coroner to be called into court, and required to perform the duties of sheriff during the pendency of said trial. On the same day, defendant, being arraigned on said indictment, pleaded not guilty. On the same day the defendant filed the following plea to the jurisdiction of said court: "Now come defendants, and for their plea say that this court should not proceed further herein, because said court has no jurisdiction herein; because the act of the general assembly creating this court is unconstitutional and void; because sections 1 and 31 of article 6 of the constitution of the state of Missouri is not self-enacting, and no proper legislative action has been taken, making them operative; because section 54, art. 4, is not self-enacting; because the notice recited in the act establishing this court was not published as required by law; because said section calls for legislative action prescribing the nature of the notice, and no such legislation has been enacted; because the last census taken under the authority of the state of Missouri shows that Greene county is a county having a population of less than 50,000; because the legislature has no authority to establish criminal courts, except in counties having over 50,000 inhabitants, and no legislative enactment was passed to determine such population, except by the state census and by the decennial census of the United States; because the notice described in said act does not provide for, or give notice that the bill will provide for, a transfer of cases from the circuit court of said county to this court. Wherefore, defendants pray that they be discharged," — which the court overruled. At the September term, 1889, the parties announced ready for trial. Eli Paxon, the coroner of said county, summoned a jury to try said cause. The defendant objected to said jury, and moved the court to quash the panel so summoned, and direct said coroner to summon a new jury, for the reason that the sheriff of said county had summoned a regular panel of jurymen for that term, and the coroner, in summoning the jury to try the cause, had summoned some of those who were in the regular panel summoned by the sheriff. The court overruled this objection and motion. Defendant was tried at said term, and found guilty as charged, and his punishment assessed at imprisonment in the penitentiary for two years. In due time he filed his motion for new trial, alleging as grounds the refusal to give instructions asked by defendant, and error in those given by the court; error in impaneling the jury; the want of jurisdiction in the court to try...