The State v. Duff

• Decision Date: 09 December 1913
• Parties: THE STATE v. L. M. DUFF, Appellant
• Court: Missouri Supreme Court

161 S.W. 683

253 Mo. 415

THE STATE v. L. M. DUFF, Appellant

Supreme Court of Missouri, Second Division

December 9, 1913

Appeal from Vernon Circuit Court. -- Hon. B. G. Thurman, Judge.

Reversed and remanded.

Lee B Ewing for appellant.

(1) This case should be reversed for the reason that the jury was not sworn to try this cause. They were sworn touching their qualifications to sit as jurors in the case, but were not sworn and impaneled after their selection as jurors. State v. Mitchell, 199 Mo. 105; State v McKinney, 221 Mo. 467; State v. Randolph, 139 Mo.App. 311; State v. Duncan, 237 Mo. 195; Lewis v. State, 51 Ala. 1; Harper v. State, 25 Ark 83. (2) The court erred in permitting the prosecuting attorney to ask the defendant if he had not been arrested in Lawrence county, and if he had not been in jail down there. State v. Wigger, 196 Mo. 90. (3) The transcript of record in this cause does not show that the jury returned any verdict into court. (4) The final judgment in this cause does not show that appellant was convicted of any crime. If it is held that the judgment does show a conviction, it is for the crime of larceny. The verdict shows appellant was acquitted of larceny. The judgment it therefore erroneous. State v. Hesterly, 173 Mo. 43. (5) Appellant's demurrer to the testimony should have been sustained. Upon the whole evidence it is not shown that the barn and corncrib in question were broken into, much less that appellant broke into them. 3 Greenleaf on Evi. (14 Ed.), secs. 74-76; State v. Henderson, 212 Mo. 208; State v. Hecox, 83 Mo. 538; State v. Tutt, 73 Mo. 595.

John T. Barker, Attorney-General, and Thomas J. Higgs, Assistant Attorney-General, for the State.

(1) The verdict is certain, positive and free from all ambiguity. This is not general, but specifically states that the defendant is found guilty as to burglary and not guilty as to larceny. The form fulfills the requirements of this court. State v. Rowe, 142 Mo. 439. (2) A motion for a new trial which merely complains that "illegal and irrelevant" testimony was admitted is not sufficiently definite to induce the court to go through the record to search for erroneous rulings on the question of evidence. State v. Holden, 203 Mo. 284. "A motion for a new trial must so definitely set out the reasons therefor as to direct the attention of the trial court to the precise error of which complaint is made." State v. Davis, 159 Mo. 534; State v. Brown, 168 Mo. 474. (3) On the other hand, a general clause in a motion for new trial was sufficient to preserve for review rulings upon specific objections made at the time of the admission or exclusion of the evidence. State v. Noland, 111 Mo. 492; State v. Barrington, 198 Mo. 76. (4) The only exceptions of material consequence occur first in the cross-examination of the defendant, when he was asked: "Did this man arrest you?" which he then denied; and second, in the testimony of Cherry, a witness for the State in rebuttal, wherein he testified that he had seen and arrested the defendant in Lawrence county, and a similar occurrence in the testimony of Brown, who was with Cherry in Lawrence county at the time. The defendant had testified to the fact as to where he had lived before he moved to his present address. The question as to where he had lived, therefore, had been brought out in direct examination, and the State in cross-examination of the defendant simply pursued this same line of questioning to a greater extent and detail. This was not a violation, therefore, of Sec. 5242, R.S. 1909. A wide range should be given to the cross-examination on any question mentioned in direct examination. 40 Cyc. 2509; State v. Avery, 113 Mo. 500; State v. Anderson, 126 Mo. 546; State v. Myers, 221 Mo. 612. The defendant had testified and had left the jury in total ignorance of the fact that he had practically been a rover, moving over the country roads from place to place. Certainly a witness cannot be allowed to testify to one certain fact as to where he has lived and as to what his associations have been, which would give the jury great respect for him in that particular, and then prevent the State from showing that a false impression had been left with the jury. (5) Again, the court should be reminded of the fact that there was no exception nor objection to the question. There is a motion to strike from the record, but the reason therefor is not given and is general in its nature. The objections during all this part of the cross-examination of this defendant are general in their nature and do not once refer to the improper cross-examination of the defendant. Unless an objection be made and an exception saved to cross-examination of the defendant in regard to matters not called out in the examination in chief, the same would be waived. State v. McDonald, 8 Mo. 539; State v. Mills, 88 Mo. 417; State v. Turner, 110 Mo. 196.

FARIS, J. Brown, P. J., and Walker, J., concur.

OPINION

FARIS, J.

From the conviction of defendant in the circuit court of Vernon county of the crime of burglary, wherewith, as also with larceny, he stood charged by an information, he has appealed to this court.

The jury found defendant guilty of burglary, but not guilty of larceny charged, and fixed his punishment at imprisonment in the penitentiary for a term of two years.

Since the facts are, in the view which we take of this case, not pertinent and not necessary to be stated in order that a complete understanding of the points in judgment may be had, we will not take space in reciting them further than to say that the burglary complained of consisted in the burglarious breaking and entering by defendant on the night of January 18, 1913, of a barn and corncrib belonging to or in the possession of one Claude T. Beedle, and situate in the county of Vernon.

The record entry as made by the clerk purporting to show the impaneling and swearing of the trial jury, is as follows:

Now on this day, this cause coming on for hearing, comes the plaintiff in person and by attorney, and comes the State of Missouri by J. B. Johnson, the duly elected and qualified prosecuting attorney of Vernon county, Missouri, the jury being by the clerk sworn, and after the selection the following good and lawful men of the body of the county are chosen to try this cause are as follows, to-wit: John Blotti, J. F. Lang, J. M. Palmer, Frank Hereford, A. C. Ogier, Jim Dinnis, Claud Hereford, O. B. Wallace, H. V. Swearingen, L. L. Cummins, G. Lile and H. C. Lyons are chosen as jurors to try this cause.

The sentence and judgment of the circuit court, as shown by the record proper, certified to us by the clerk, is as follows:

Now, at this day, comes the prosecuting attorney for the State and also comes the defendant herein, in person, in the custody of the sheriff of this county, and in the presence of his attorney and counsel in open court, whereupon said defendant is informed by the court that he stands charged with larceny and pleads not guilty as charged in the information, and being now asked by the court if he had any legal cause to show why judgment should not be pronounced against him according to law, and still failing to show such cause, it is therefore sentenced, ordered and adjudged by the court, that the said defendant, L. M. Duff, having plead not guilty as aforesaid, be confined in the penitentiary of the State of Missouri, for the period of two years from the 19th day of February, 1913, and that the sheriff of this county, shall, without delay, remove and safely convey the said defendant to the said penitentiary, there to be kept, confined and treated in the manner directed by law, and the warden of said penitentiary is required to receive and safely keep him, the said defendant in the penitentiary aforesaid, until the judgment and sentence of the court herein be complied with or until the said defendant shall be otherwise discharged by due course of law.

It is further considered, ordered and adjudged by the court, that the State have and recover of said defendant the costs in this suit expended and that hereof execution issue therefor.

Immediately, upon the conviction of defendant, that is to say, on or about February 19, 1913, he was incarcerated in the penitentiary, where he ever since has been and now is.

The above statement we deem sufficient, regard being had to the points which we are compelled by the condition of the record before us to hold in judgment here. Should, however, other facts be necessary, they will be adverted to in the opinion.

I. Learned counsel for appellant insists that there is not sufficient evidence of the breaking charged in the information to constitute the crime of burglary. While this point is not necessary to a decision of this case, at this time, in the view which we take of it, it is perhaps well for us to say that in our view counsel is in error. The testimony shows that the outer door of the crib in question, and in which defendant was found at about the hour of two o'clock on the night of January 18th, was closed at about the hour of ten o'clock on the identical night; that said door was not again seen by anyone until about the hour of two o'clock that night, at which time it was found to be open and defendant was himself found to be in the crib. We think that this circumstance inevitably points to a breaking on the part of the defendant with such unerring certainty as to preclude any doubt thereof either in law, or in common sense. If this were not so, it would, we think, become almost impossible to prove the crime of burglary. When a witness swears that a door is closed or locked, or that a window is down or locked at a given hour; that subsequently and shortly thereafter a burglary occurs in the building or...