The State v. Crane
| Decision Date | 05 March 1907 |
| Citation | 100 S.W. 422,202 Mo. 54 |
| Parties | THE STATE v. JOHN M. CRANE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. B. J. Casteel, Special Judge.
Affirmed.
W. C Reynolds, A. C. Durham and Milton Oldham for appellant Boyle, Guthrie & Smith of counsel.
(1) The regular judge, Wofford, was not properly disqualified; hence there was no authority under the law for Casteel, special judge, who tried the case, to act. Secs. 2594, 2595, R. S. 1899. Defendant was the only proper person to make the affidavit. State v. Thomas, 32 Mo.App. 159; State v. Brownfield, 83 Mo. 452; State v. Shipman, 93 Mo. 157; State v. Sumner, 143 Mo. 228. (2) The plea in abatement and motion to quash should have been sustained. The grand jury that indicted the defendant was not drawn and summoned as provided by law. It was in session at the time when the homicide took place. It had been called shortly prior to this date, and the motion to quash and the plea in abatement was leveled at the method employed in the selection of the jurors. Sec. 3770a, Laws 1901, p. 192. The judge of the criminal court of Jackson county was authorized under this law to call a grand jury. The law, however, provides the manner in which the jurors must be selected. Instead of following the provisions of the law the court made out a list himself and instructed the marshal whom to subpoena. The State filed no pleadings in answer to the plea in abatement. We contend that the allegations of the plea in abatement must be taken as true. State v. Austin, 183 Mo. 478. (3) Defendant's applcation for a continuance was sufficient and should have been granted. Defendant had been a railroad man, and it was necessary to communicate with a great number of people in order to ascertain facts pertaining to his life. The application for a continuance was made in good faith, and this man's rights were prejudiced by the overruling of the motion. State v. Warden, 94 Mo. 648; State v. Anderson, 96 Mo. 250; State v. DeWitt, 152 Mo. 85; State v. Loe, 98 Mo. 609. (4) The motion to inquire into the sanity of defendant should have been sustained. The motion was filed before the jury was empaneled. It may be contended that it is discretionary with the court whether this inquiry should be made. However, when uncontradicted testimony of a reputable character is presented, demonstrating beyond peradventure that the defendant about to be tried is then insane, we contend that it is the duty of the court to inquire into that fact and that the failure to so inquire would be an abuse of discretion. Any other rule would lead to monstrous results. State v. Jones, 13 Ala. 157; State v. Conrad, 105 Ia. 21; Com. v. Braley, 1 Mass. 102; People v. Ah Ying, 42 Cal. 18; Freeman v. People, 4 Denio 9; Guangando v. State, 41 Tex. 626; Taffe v. State, 23 Ark. 34; Com. v. Hathaway, 13 Mass. 229; Gruber v. State, 3 W.Va. 699. (5) The court should have sustained defendant's motion to quash the panel of jurors. This motion was made in writing and challenged the court's attention to the fact that, after the forty-seven jurors had been qualified, and prior to the selection of the twelve out of the forty-seven, the press of Kansas City took occasion to write certain articles criticising Crane in a most vicious manner, and seeking to prejudice his case on the theory that he was acting a part before the jury. This article was made a part of the motion and set out in full. State v. Hottman, 196 Mo. 110. It will be observed that the record does not disclose that the court admonished the jury after the forty-seven had been empaneled that they should not read the public press in reference to this matter, to the end that their minds be kept free from bias. It is true that counsel for the defendant might have re-examined the jurors, as was suggested in the Hottman case, but the court without a moment's delay, and before counsel had an opportunity of taking any futher steps in the matter, overruled the motion. In the case at bar the court did not pursue the course followed in the Hottman case, wherein the judge himself interviewed the jurors to ascertain if any of the jurors had read the prejudicial articles. In the Hottman case four of the jurors had read the articles and were prejudiced thereby. These jurors were excused. Hence, any damage that might have been done by the newspaper articles was corrected. Nothing of the kind was done in the case at bar, but defendant was shoved into the trial in the face of an atmosphere created by these prejudicial newspaper reports.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
(1) Whether the application of defendant for a change of venue from the regular judge was regular in form or not, that court had jurisdiction of the subject-matter and the person of the defendant, sustained defendant's application for such change and called in Casteel as special judge to try the cause. The defendant did not except to the action of the court in granting such change of venue at the time, but recognized the jurisdiction of said special judge when he appeared to try said cause. State v. Gamble, 119 Mo. 430; State v. Ware, 69 Mo. 332; Stearns v. Railroad, 94 Mo. 317; State v. Linn, 169 Mo. 664; State v. Taylor, 132 Mo. 286. (2) The court did not err in overruling defendant's plea in abatement and motion to quash the indictment. The said plea and motion to quash were based upon an alleged irregularity in the selection of the grand jury. It appears in the record that the grand jury which returned the indictment was organized and in session at the time of the alleged homicide. The grounds upon which a grand juror may be challenged are set forth in section 2487, Revised Statutes 1899, and such right of challenge is given only "to any person held to answer a criminal charge." Sec. 2488, R. S. 1899; State v. Connell, 49 Mo. 287; State v. Knight, 61 Mo. 373; State v. Holcomb, 86 Mo. 371; State v. Reed, 162 Mo. 312; State v. Welch, 33 Mo. 33. (3) The court did not err in overruling defendant's application for a continuance. A consideration of the motion and affidavit and the facts disclosed by the record will show that there was a want of due diligence by defendant to secure the evidence of the alleged absent witnesses, and, further, that there was no abuse of discretion on the part of the court in overruling said motion. State v. Woodward, 182 Mo. 391; State v. Blitz, 171 Mo. 350; State v. Sims, 68 Mo. 305. Defendant's failure to have subpoenas issued until after the day the cause was set for trial showed a want of due diligence. State v. Murphy, 46 Mo. 430; State v. Emory, 79 Mo. 461; State v. Goode, 132 Mo. 114; State v. Thompson, 132 Mo. 301; State v. Bryant, 93 Mo. 273. Besides, the facts as set forth in said affidavit which it is alleged the absent witnesses would prove if present, would have been merely cumulative to the evidence given in defendant's behalf at the trial, and it was not an abuse of discretion in the court to overrule the motion. State v. Tettaton, 159 Mo. 354; State v. Webster, 152 Mo. 87; State v. DeWitt, 152 Mo. 76. (4) The court did not err in overruling the motion to inquire into the sanity of defendant. Sec. 2603, R. S. 1899. The fact that the court is given the power to try such question of insanity in advance of the trial of the charge in the indictment only when such person becomes insane after his indictment, implies that it does not give authority to the court to direct such inquiry in cases where the insanity was alleged to exist before as well as after the indictment was found. Section 2606, Revised Statutes 1899, providing for the disposition of persons tried for crime wherein the defense of insanity is interposed, clearly indicates the correctness of this construction. (5) The court did not err in overruling defendant's motion to quash the panel of jurors. Defendant did not ask to examine the said jurors for the purpose of ascertaining if any of them had read said article. The case of State v. Hottman, 196 Mo. 110, decides this contention against appellant.
W. C. Reynolds and A. C. Durham for appellant in reply; Boyle, Guthrie & Smith of counsel.
(1) The court committed manifest error in instruction 7. The following portion of said instruction is erroneous: "Those opinions neither establish nor tend to establish the truth of the facts upon which they are based." (2) Defendant interposed timely objections to testimony as to the defendant's drinking and being drunk. These objections the court overruled and permitted this line of testimony in rebuttal. Having made timely objection when this line of testimony was first brought out, it was not necessary for the defendant to repeat these objections thereafter. The State should not be permitted to introduce testimony in rebuttal that should have been introduced in its case in chief. This testimony was not in rebuttal and should have been introduced, if at all, by the State in its case in chief. Christal v. Craig, 80 Mo. 375; Glenn v. Stewart, 167 Mo. 593.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State in reply.
(1) Instructions of which those now complained of are substantially transcripts have been many times approved by this court. State v. Duestrow, 137 Mo. 44. (2) Appellant complains that the court permitted the State in rebuttal to prove conduct and statements of the defendant at the time of the homicide and prior thereto over the defendant's objection. The defense was insanity, and it was clearly competent for the State to prove the matters complained of to meet the issue thus made. But even if the defendant's objection that such evidence was "not in rebuttal, but a part of their case in chief,"...
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