State v. Williams
| Citation | 69 Mo. 110 |
| Parties | THE STATE v. WILLIAMS et al., Plaintiffs in Error. |
| Decision Date | 31 October 1878 |
| Court | United States State Supreme Court of Missouri |
Error to Pettis Criminal Court.--HON. W. H. H. HILL, Judge.Lay & Belch for plaintiffs in error.
J. L. Smith, Attorney-General, and Geo. P. B. Jackson for the State.
The defendants insist that the court should have dismissed the cause, because the record did not show that a change of venue was awarded by the circuit court of Miller county to the criminal court of Pettis county. The order was, that a change of the venue of said cause be awarded to the county of Pettis in the sixth judicial circuit of Missouri, and it is further ordered by the court that the clerk of this court transmit to the clerk of the criminal court of said county of Pettis a full transcript of the record and proceeding in this cause, duly certified under his hand as clerk and the seal of this court.” Section 6, page 42, acts 1875, establishing “the criminal court of the sixth judicial circuit and county of Johnson,” provides that “all criminal cases removed from any county to any of the counties composing said criminal judicial circuit, shall be certified to, tried and determined by said criminal court in the county to which the same may be sent.” When the change of venue was awarded to Pettis county, it became the duty of the clerk of the Miller circuit court, under that section, to certify the case to the criminal court of Pettis county, even though the order awarding the change of venue to Pettis had been silent on the subject of certifying the record. There was no other court for Pettis county which had jurisdiction to try the cause. It was certified to and tried by the proper court, and the motion to dismiss was properly refused.
Defendants also complain of the refusal of the court to grant them a continuance on their application. The witness on account of whose absence the continuance was asked, resided in Miller county. He had once been subpœnaed as a witness, but failed to attend. It was his duty to be present at the next term without further notice. Being in contempt of the court at the time, for which he was summoned, defendants should have procured an attachment to compel his attendance at the next term. They should, at least, have had another subpœna issued earlier than the 19th day of October, to procure the attendance of the witness at the ensuing November term of the Pettis criminal court. We do not think that under the circumstances the court abused its discretion in refusing the continuance.
Nor was it error to limit counsel in argument to the jury, or to require the defendants' counsel to close his argument at the expiration of the hour given him. This has more than once been decided to be a matter in the discretion of the court, and we see no reason to determine otherwise, when that discretion has not been abused. State v. Linney, 52 Mo. 40.
The instructions given by the court at the request of the State are unobjectionable, except the first, in regard to murder in the first degree, but as defendants were acquitted of that charge, they cannot complain of that error. We call attention to that error, however, in order to correct it. The instruction declared that “if said defendant, John Williams, had time to think, and did intend to kill deceased for a moment, then the killing is a willful, deliberate and premeditated killing,” &c. As there may be an unlawful intentional killing that is not murder in the first degree, the court erred in declaring, as a matter of law, that an intentional killing is willful, deliberate and premeditated. Whether deliberate or premeditated, is a matter that must be left to the jury for their consideration. If defendants had been found guilty of murder in the first degree, the error here noticed would have been fatal. In other respects the instructions are faultless. Those asked by defendants in regard to the drunkenness of John Williams, when he fired the fatal shot, were properly refused by the court. State v. Cross,27 Mo. 332; State v. Harlow, 21 Mo. 446; State v. Hundley, 46 Mo. 414; State v. Pitts, 58 Mo. 556.
The amended transcript shows that defendants, in person and by their counsel, were present throughout the entire trial, and when the verdict was delivered into court. In the original transcript this did not appear. We presume that the brief of defendants' counsel was prepared before the amended transcript was filed.
Another question which we deem it necessary to notice particularly, is whether the court erred in stating to the counsel for defendants, while addressing the jury, and endeavoring to show them that defendants should not be convicted of a higher crime...
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Cook v. State
...Court in the case of Sullivan (Clark) v. State, 1 Parker, Cr. R. 347, hereinbefore referred to and quoted from. In the case of State v. Williams, 69 Mo. 110, the decided that an instruction, 'If said defendant, John Williams, had time to think, and did intend to kill deceased for a moment, ......
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...State v. Jewell, 90 Mo. 467; State v. Wilson, 85 Mo. 140; State v. Fox, 79 Mo. 109; State v. Ward, 74 Mo. 255, and cas. cit.; State v. Williams, 69 Mo. 110. (4) who has formed an opinion as to the guilt or innocence of the accused, from newspaper reports, is not thereby disqualified from se......
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