State v. Wilson

• Decision Date: 31 October 1884
• Citation: 85 Mo. 134
• Parties: THE STATE v. WILSON, Appellant.
• Court: Missouri Supreme Court

85 Mo. 134

THE STATE

v.WILSON, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Lafayette Criminal Court.--HON. J. E. RYLAND, Judge.

REVERSED.

R. A. Hicklin, A. J. Hall and Wm. Young for appellant.

(1) The court erred in refusing to grant defendant's application for a change of venue. It abused its discretion. (2) The court erred in sustaining the demurrer to defendant's plea in abatement. The grand jury must be considered as a whole. The status of any one member fixes the status of the whole grand jury. If any one of them be open to exception, he vitiates the whole grand jury. Barney v. State, 12 S. & M. 68; State v. Duncan, 7 Yerger 271; State v. Jacobs, 6 Texas 99. (3) The court erred in overruling defendant's application for a continuance. (4) The court erred in overruling defendant's challenges to certain jurors. They had formed and expressed opinions of defendant's guilt or innocence which it would take evidence to remove. The juror, George Vandiver, said he naturally supposed defendant guilty. It is for the Supreme Court to say whether such jurors are biased or prejudiced. Baldwin v. State, 12 Mo. 223. (5) The court erred in giving the third instruction for the state. It virtually told the jury that if they could satisfactorily and reasonably infer the elements of murder in the first degree from the evidence they should do so. A rational and substantial doubt of defendant's guilt requires his acquittal. State v. Fugate, 27 Mo. 535. (6) There was no evidence upon which to base the fifth instruction on the part of the state. (7) The eighth and ninth instructions given for the state were comments on the evidence and erroneous. 53 Mo. 257. (8) The panel of forty returned by the sheriff was not impartially selected. Defendant was a negro. One-sixth of the population of the county is negroes and there should have been negroes on the panel. Const. of U. S., amendment 13. (9) The court erred in not giving an instruction defining murder in the second degree. State v. Banks, 73 Mo. 592; State v. Matthews, 20 Mo. 55; State v. Stonum, 62 Mo. 596.

B. G. Boone, Attorney General, and John S. Blackwell, prosecuting attorney, for the state.

(1) The criminal court did not err in refusing to grant defendant's application for a change of venue. R. S., sec. 1859; State v. Whitton, 68 Mo. 91; State v. Sayers, 58 Mo. 585, and cases cited; State v. O'Rourke, 55 Mo. 440. (2) The court did not err in sustaining the demurrer to defendant's plea in abatement. R. S., secs. 1771, 1772, 1773, 1846, 2778, 2787; State v. Connell, 49 Mo. 282; State v. Bleekley, 18 Mo. 428; State v. Welsh, 33 Mo. 33; State v. Baker, 20 Mo. 338; State v. Breen, 59 Mo. 413; State v. Knight, 61 Mo. 373; State v. Hart, 66 Mo. 208; State v. Drogmond, 55 Mo. 87. (3) The criminal court did not err in overruling defendant's application for a continuance. ( a) Because the application is insufficient. It fails to show due diligence on defendant's part in getting ready for trial. The probability of procuring the testimony of the alleged absent witnesses at some future time is not even mentioned in said application. R. S., sec. 1884. ( b) The statements in the application are in direct conflict with the record in the case. ( c) If the witness had been present at the trial his testimony, as stated in the application, would have been irrelevant, incompetent and immaterial. State v. Alexander, 66 Mo. 148; State v. Martin, 74 Mo. 547. ( d) The application was addressed to the sound discretion of the trial court, and this court will not interfere unless such discretion appears to have been exercised unsoundly or oppressively. State v. Green, 13 Mo. 383; State v. Lange, 59 Mo. 418; State v. Williams, 69 Mo. 110; State v. Sims, 68 Mo. 305; State v. Ward, 74 Mo. 253, and cases cited; State v. Fox, 79 Mo. 109. (4) The court did not err in overruling defendant's challenges to certain jurors. They were not disqualified under the statute and decisions of this court. R. S., sec. 1897; State v. Stein, 79 Mo. 330; State v. Walton, 74 Mo. 274, and cases cited; Baldwin v. State, 12 Mo. 223; State v. Core, 70 Mo. 491; State v. Barton, 71 Mo. 288; Reynolds v. U. S., 98 U. S. 145; Curby v. Com.,84 Pa. St. ____; Meyers v. Com.,79 Pa. St. 151; Barbo v. People, 80 N. Y. 484; Guetrys v. State, 66 Ind. 94; State v. Lawson, 38 Iowa 51; 94 Ill. 299; 9 Fla. 215; People v. Welch, 49 Cal. 174; Ogle v. State, 33 Miss. 383; Carson v. State, 50 Ala. 134; Thomas v. State, 36 Texas, --. This case does not come within the doctrine of the State v. Culler, 82 Mo. 623. (5) The instructions on the part of the state, taken all together, fairly present the case to the jury, and defendant cannot reasonably complain. State v. Kilgore, 70 Mo. 546; State v. Talbott, 73 Mo. 348; State v. Holme, 54 Mo. 153; State v. Lane, 64 Mo. 319; State v. Thomas, 78 Mo. 327; State v. Linney, 52 Mo. 40; R. S., sec. 1918; State v. Cooper, 7 Mo. 436. (6) It is too late after verdict to object for the first time to the constitution of the trial jury. R. S., secs. 2777, 2778; Samuels v. State, 3 Mo. 69; State v. Marshall, 36 Mo. 400; State v. Jones, 61 Mo. 232; State v. Ward, 74 Mo. 253; State v. Breen, 59 Mo. 413; State v. Pitts, 58 Mo. 556. (7) There was no evidence upon which to base an instruction for murder in the second degree. Defendant is guilty of murder in the first degree or guilty of no offence. State v. Harris, 59 Mo. 550; State v. Kotovsky, 74 Mo. 247; State v. Ward, 74 Mo. 253; State v. Starr, 38 Mo. 270; State v. Jones, 79 Mo. 441; State v. Snell, 78 Mo. 240; State v. Kilgore, 70 Mo. 546.

SHERWOOD, J.

The defendant, a negro, was indicted for killing a girl of his own race, by shooting her to death with a pistol. The crime of which defendant stands convicted, if testimony to that effect from all the witnesses except defendant, be taken as true, and the nature, number and direction of the gun-shot wounds be considered, was an atrociously brutal murder, without palliation or excuse. The testimony of the defendant, in some particulars, tended to show circumstances extenuating the offence; but when his whole testimony is examined, no possible doubt can arise as to the existence of his guilt in the degree affirmed by the verdict of the jury. And this fact becomes very conspicuous when his testimony as to the circumstances attending the killing is contrasted with the physical facts of the direction of one of the gun-shot wounds, the blood stains on the bed where the deceased was lying when the defendant went into the room, and the testimony of Dr. Russell as to the recumbent position deceased was in when receiving that wound. Numerous errors have been assigned for the reversal of the judgment.

I. There was no error in holding the plea in abatement, filed by defendant, insufficient. Taking that plea, it having been demurred to, as true, the facts thus admitted constitute no ground for a plea in abatement. Section 2787, Revised Statutes, 1879, is directly applicable to this case. That section expressly provides that, “in case of non-attendance of any grand juror after he shall have been qualified, or in case any grand juror is excused by the court from further service for any cause, the court shall cause another grand juror to be summoned and sworn.” The grand juror who had been qualified having failed to attend, it was perfectly competent for the court to discharge him and to order a new grand juror to be summoned and substituted for him.

II. Regarding the application for a change of venue, it was based upon the ground of the prejudice of the inhabitants of the county against the defendant. On this point witnesses were heard pro and con, and the decision of the trial court was final thereon, unless some abuse of judicial discretion were shown, which has not been done. State v. Whitton, 68 Mo. 91, and cases cited; Revised Statutes, 1879, section 1859.

III. The application for a continuance was properly denied, and this for several reasons: The indictment was found on the fourteenth day of October, 1884; the defendant was arraigned on the sixteenth day of October, when he appeared in person and by counsel; on the twentieth day of October additional counsel were appointed for him; on the twenty-third day of October, the day the trial began, the application for a continuance was made, wherein it is alleged that defendant was not able to procure counsel for his defence until the twentieth day of October, when the same were appointed for him by the court; that on the eighteenth day of October an attorney of the court, at defendant's solicitation, had a subpœna issued for his witnesses, which subpœna as to the absent witness on the twenty-second day of October was returned non est. Some of these statements are contradicted, as already seen by the record, and, besides, show no diligence. The defendant had counsel on the sixteenth day of October, when he was arraigned and a jury ordered for the trial of the cause, for this is shown by the record, and yet no subpœna was issued for two days thereafter, as appears by defendant's sworn statement. Why this delay? The witness, Chapman, as the application states, resides in Lexington, and that he had gone for the time being to St. Louis. When he went to that place is not stated. From aught that appears, if timely process had been issued, he would have been served prior to his departure for St. Louis. Furthermore, the application is defective, in that it does not comply with the statute by setting forth the probability of procuring the testimony of the witness and within what time. Revised Statutes, 1879, section 1884. Moreover, granting and refusing applications of that character, always rests largely in the discretion of the court, and unless it clearly appear that such discretion has been unsoundly exercised this court will not interfere, as has been often decided, as shown by authorities cited for the state.

IV. Complaint is made that error occurred in...