The State v. David

• Citation: 33 S.W. 28,131 Mo. 380
• Parties: The State v. David, Appellant
• Decision Date: 03 December 1895
• Court: United States State Supreme Court of Missouri

33 S.W. 28

131 Mo. 380

The State v. David, Appellant

Supreme Court of Missouri, Second Division

December 3, 1895

Appeal from Osage Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Affirmed.

I. W Boulware for appellant.

(1) A juror in a murder case is not disqualified by reason of his having "conscientious scruples" against enforcing the death penalty. He may have "conscientious scruples" against many laws in the statute, and yet be a competent juror in a case involving the enforcement of such laws. Only those persons whose opinions are such as to preclude them from finding any defendant guilty of an offense punishable with death are disqualified to serve as jurors on the trial of an indictment for any offense punishable with death. R. S. 1889, sec. 4195. (2) The court erred in sustaining the challenge of the state to jurors who, on their voir dire examination, stated that they had formed or expressed an opinion as to the guilt or innocence of defendant based only on newspaper reports or rumors, and not such as to bias or prejudice their minds. R. S. 1889, sec 4197; State v. Walton, 74 Mo. 270; State v Bryant, 93 Mo. 273; State v. Hopkins, 84 Mo. 278. (3) The rule adopted by the court below gave the state an endless number of peremptory challenges. Each competent juror discharged on motion of the state amounted to a peremptory challenge on part of the state. Instead of eight challenges as allowed by law, it had twenty or more. The jury should consist of the first forty qualified jurors, and from this forty the panel of twelve should be selected. R. S. 1889, secs. 4202-4205. (4) This ruling of the court was erroneous, unjust, improper, and worked to the injury and prejudice of defendant. (5) The court erred in allowing J. R. McCord to testify in behalf of the state, he being in the court room during the trial, heard all the witnesses give their testimony, and this in violation of an order and rule of court made on motion of the state at the beginning of the trial. While it may be in the discretion of the court whether the witnesses be excluded from the room -- separated -- yet it was not in the discretion of the court to permit the rule violated against the objection of defendant, after being enforced as to all other witnesses. State v. Whitcomb, 29 S.W. 595; King v. State, 29 S.W. 1086; Mayes v. State, 24 S.W. 421; People v. Etter, 45 N.W. 1109. (6) The statements made by parties before the coroner at the inquest, the verdict of the coroner's jury, and the other proceedings before the coroner, were illegal and incompetent testimony, and it was gross and reversible error to permit the same to go to the jury as evidence against the defendant. And, further, there was no evidence that such statements were made, signed, or sworn to by the parties. (The coroner could neither read nor write.) State v. Hope, 100 Mo. 347; State v. O'Connor, 65 Mo. 374; State v. Mullins, 101 Mo. 514; Brown v. Connors, 19 S.E. 447. (7) There was no evidence that defendant made or signed the statement as alleged before the coroner -- no jurat or certificate to same. No one swore to his signature. It was not admitted to be genuine, nor was it legally or properly "a paper in the case." The witness, McCord, was not familiar with his handwriting, never saw him write, nor had he ever seen his signature. (8) If defendant was summoned, sworn, and testified as a witness at the coroner's inquest, such statements so made can not be used as evidence against him on this trial, unless it be shown that he testified of his own volition and not by compulsion. State v. Mullins, 101 Mo. 514, and authorities cited; State v. Wisdom, 119 Mo. 539; State v. Young, 119 Mo. 495; State v. Same, 11 S.E. (S. C.) 292; People v. Jordan, 99 Cal. 227. (9) It is the duty of the court to see that innocent men are not convicted of crime. And, therefore, if improper evidence be offered by the state in a criminal case the court must exclude it whether proper objections be made on part of defendant or not. State v. O'Connor, 65 Mo. 374. The court should hesitate long before saying and holding that the violation of a plain rule of evidence did not operate to the prejudice of the accused. State v. Thomas, 78 Mo. 327; State v. Holmes, 54 Mo. 154. (10) The state's witness, J. R. McCord, was not an expert in handwriting. He did not have the requisite qualifications to make him a competent witness to testify as an expert to the genuineness of a signature by comparison of handwriting. 7 Am. and Eng. Encyclopedia of Law, p. 491, and note; State v. Tompkins, 71 Mo. 613; State v. Owen, 73 Mo. 440. (11) The trial court was guilty of error in permitting the written statement, alleged to have been made at the coroner's inquest and purporting to be signed by the defendant, Emile David, and the druggist Brandenberger's "poison register" with the signature "E. Davis" thereto, to go to the jury at the request of the state as evidence. There was no evidence that either of the signatures was written by the defendant. State v. Minton, 116 Mo. 605-614; Greenleaf on Evidence, sec. 578; State v. Scott, 45 Mo. 302; State v. Tompkins, 71 Mo. 614; Rose v. Bank, 91 Mo. 399; State v. Grant, 74 Mo. 33. (12) It was the duty of the state to call and examine as witnesses all who were eyewitnesses of the homicide, who were before the grand jury, indorsed on the indictment, and who were present in court. The prosecuting attorney represented the defendant as well as the state. It was his duty to produce before the jury all the facts; all the witnesses who had a personal knowledge of the homicide; to see that the guilty are punished and the innocent are protected. People v. Gordon, 40 Mich. 716; State v. Kilgore, 70 Mo. 546. The court is asked to review and reconsider the opinion in case of State v. Eaton, 75 Mo. 586; Mayn v. State, 24 S.W. 421; State v. Etter, 45 N.W. 1109. (13) The court erred in defining the word "deliberation" in the third instruction to mean "done in a cool state of the blood and not done in a sudden passion engendered by a lawful or just cause of provocation." State v. Fairlamb, 121 Mo. 137, and authorities cited. (14) Instruction number 7, given on part of the state, was not the law. This instruction told the jury that "if you find that the defendant has committed the crime as charged in the indictment it is your duty to find him guilty, no matter whether any motive for the deed be apparent to you or not." State v. Jackson, 95 Mo. 623; State v. Sanders, 106 Mo. 188. (15) The state's instruction number 7 refers the jury to the indictment to ascertain the issues they were to pass on. State v. Scott, 109 Mo. 226; State v. Brown, 104 Mo. 365; State v. McCaskey, 104 Mo. 644. (16) No felony can be committed unless done with a criminal intent and motive. The criminal intent and motive must be proven by direct or circumstantial evidence, or it may be inferred from other facts proved, yet it is a fact which must be shown to the satisfaction of the jury. 1 Bish. C. L. [4 Ed.], p. 213, sec. 370. (17) Instruction number 6, given on part of the state, in referring to a conviction on circumstantial evidence, tells the jury that before they can find defendant guilty on such evidence the same must be consistent with his guilt and inconsistent with any other theory. This instruction was erroneous. It should have stated that the evidence must be absolutely inconsistent with his guilt. State v. Moxley, 102 Mo. 374; State v. Taylor, 111 Mo. 538.

R. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.

(1) The court committed no error in its examination of the jurors on their voir dire. (2) The court did not err in permitting the witness McCord to testify as an expert, as to defendant's handwriting. The evidence showed that defendant had made a statement before the coroner and signed it; it was proper to permit the witness McCord to compare that signature with the one on the poison record. State v. Minton, 116 Mo. 614. The witness had qualified as an expert on comparison of handwriting. (3) The court did not err in its instructions on "deliberately" and on "malice aforethought." (4) No error was committed in refusing to compel the state to call all the eyewitnesses of the homicide. (5) The question asked the jurors whether or not they would be willing to find a verdict of murder in the first degree, provided the evidence was sufficient, though entirely circumstantial, was proper. State v. Young, 119 Mo. 495; State v. Leabo, 89 Mo. 243; State v. West, 69 Mo. 401.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

The defendant was indicted and convicted in the circuit court of Osage county at the December term, 1894, of the murder of Frank Henderson by administering to him strychnine in a drink of whisky on the morning of January 8, 1894. From that conviction he prosecuted this appeal.

The testimony discloses the fact that deceased and his parents during January, 1894, lived in Osage county, about ten miles from Chamois; that the defendant, with his parents, resided in Osage county, between the home of the deceased and Chamois; that on the morning of the eighth of January the deceased started afoot to go to Chamois; that he arrived at the home of the defendant about daylight, where he stopped. Upon his arrival he remarked that he was cold, whereupon defendant invited him to take a drink of whisky, which he did, and almost immediately thereafter was taken with violent cramps and died within an hour and a half. After drinking the whisky the deceased had every symptom of being poisoned. The coroner was sent for, came, attended by two physicians, and made a post-mortem examination, inspected his internal organs, removed the stomach, placed it in a sealed jar, and...