The State v. Dyer

• Decision Date: 11 May 1897
• Citation: 40 S.W. 768,139 Mo. 199
• Parties: The State v. Dyer, Appellant
• Court: Missouri Supreme Court

40 S.W. 768

139 Mo. 199

The State v. Dyer, Appellant

Supreme Court of Missouri, Second Division

May 11, 1897

Appeal from Pettis Circuit Court. -- Hon. George F. Longan, Judge.

Affirmed.

D. E Kennedy, P. D. Hastain and H. K. Bente for appellant.

(1) It was clearly error to refuse instruction number 12. Walker was under no obligation to assist Brown, nor was he justified in attacking the defendant or interfering in the defense of Brown. R. S. 1889, sec. 3462. (2) The court erred in admitting illegal and incompetent testimony on the part of the prosecution. First. In allowing counsel for the State to ask witness Greer leading questions. Second. By permitting witness Hickman to examine the revolver shown him before he described and identified it. Third. In admitting evidence of the conviction of the defendant of a misdemeanor; such evidence was not admissible. State v. Warren, 57 Mo.App. 502; State v. Taylor, 98 Mo. 240; State v. Smith, 125 Mo. 2; State v. Donnelly, 32 S.W 1124; Ex parte Wilson, 114 U.S. 417; Macklin v. U.S. 117 U.S. 348; Gardner v. Railroad, 36 S.W. 215. Fourth. It was error to admit evidence of defendant's general character for virtue and chastity. State v Sibley, 33 S.W. 167, and cases cited. (3) The court erred in overruling defendant's application for a change of venue. Appellant contends that the act of the General Assembly, approved March 18, 1895, amending section 4156, chapter 48, article 6, Revised Statutes of Missouri, is unconstitutional, as being in conflict with sections 22 and 28 of article 2 of the Constitution of the State. By refusing this application the court deprived defendant of one of his strongest constitutional rights, and forced defendant into a trial in a county where the strongest character of prejudice existed. (4) The court erred in overruling defendant's motion to quash the indictment, and his application for a new copy thereof. State v. Lisle, 6 Mo. 426; State v. Green, 66 Mo. 637. First. The indictment is defective. State v. Fairlamb, 121 Mo. 137. Second. The defendant was entitled to a true copy of the indictment and it was error to refuse it. State v. Green, 66 Mo. 637. (5) The court erred in overruling defendant's application for a continuance because: First. The testimony of the witness Gayhart was material as it was part of the res gestae. State v. Walker, 78 Mo. 380; State v. Duncan, 116 Mo. 296; State v. Bradley, 90 Mo. 160; State v. Klinger, 43 Mo. 128; State v. McGuire, 69 Mo. 197. Second. Where the defendant has exercised due diligence to procure the attendance of a witness he is entitled to a continuance. State v. Wardon, 94 Mo. 648; Clark v. State, 33 S.W. 224; Carter v. State, 35 S.W. 378; Porter v. State, 32 S.W. 692. (6) The court erred in overruling defendant's challenge for cause to certain jurors who, on being examined on their voir dire, stated that they had formed opinions from reading accounts of the homicide in the newspapers of what purported to be evidence. Defendant was entitled to a panel of forty jurors who were unbiased by any opinion based upon the testimony or published evidence. R. S. 1889, secs. 4197, 4200; State v. Culler, 82 Mo. 623; Com. v. Knapp, 20 Am. Dec. 491; State v. Walton, 74 Mo. 270; State v. Hultz, 106 Mo. 41; State v. Taylor, 35 S.W. 92; State v. Robinson, 117 Mo. 649; State v. Hopkirk, 84 Mo. 283; State v. Wilson, 85 Mo. 134. (7) The court erred in refusing defendant permission to file copies of the papers read by the jurors, as well as the evidence taken before the coroner's jury for the purpose of showing that the testimony and reports read by the jurors were copies of the evidence taken before the coroner. State v. Robinson, 117 Mo. 649; State v. Taylor, 35 S.W. 92. (8) The court erred in allowing the jury to separate although it does not appear that any juror was approached, or that there was any grounds of suspicion that they were moved by outside influences. State v. Collins, 81 Mo. 652; State v. McLean, 8 Mo. 153; State v. Bell, 70 Mo. 633; State v. Orrick, 106 Mo. 111; State v. Avery, 113 Mo. 475; State v. Howland, 119 Mo. 419; People v. Hawley, 43 P. 404. (9) The court erred in not correcting Mr. Lamm of counsel for the State, who in the closing argument to the jury stated: "That the place where the killing was done was a bawdy house and the defendant was an inmate of a bawdy house." There was no such evidence introduced and the remarks of counsel were prejudicial to defendant, and are grounds of reversal. Churchman v. Kansas City, 49 Mo.App. 366; Gibson v. Zeibig, 24 Mo.App. 66.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The indictment in this case was sufficient. It charges: First, the assault was feloniously made; second, the shooting was felonious; third, that the wounding was done feloniously. State v. Wood, 124 Mo. 412. (2) The objection to the copy of the indictment was first directed to the erroneous date of filing on the back thereof. A clerical error like this will not be reversible. State ex rel. v. Lay, 128 Mo. 615. (3) The arraignment being made, defendant pleaded to the indictment in the first instance without making objection "on account of failure to serve him with a copy thereof." He has therefore waived his statutory right and can not now assert it. State v. Nelson, 132 Mo. 197. (4) The act of March 18, 1895, of the General Assembly is constitutional. The legislature can change procedure -- the manner of exercising a right -- and this was constitutional. Railroad v. Cudmore, 103 Mo. 634; State v. Jackson, 105 Mo. 196; State v. Taylor, 35 S.W. 99, 100. (5) The determination of application for a change of venue based on local prejudice is given to the discretion of the trial court. This means a sound judicial discretion subject to the review of the appellate court. State v. Loe, 98 Mo. 609; State v. Williams, 77 Iowa 660. (6) The evidence justified the giving of the instructions of the court. Under the evidence, instruction for murder in the second degree was proper. State v. Crawford, 115 Mo. 620; State v. Swanagan, 109 Mo. 233; State v. Lewis, 118 Mo. 79. Instruction numbered 12 does not sufficiently set out the law of self-defense, hence was properly refused. State v. Smith, 114 Mo. 406. (7) The testimony of witness Greer, relative to condition of the premises the morning after homicide, was clearly competent. State v. Weeden, 133 Mo. 82. When a codefendant testifies, he or she may be impeached or contradicted the same as any other witness who testifies. State v. Chyo Chiagk, 92 Mo. 395. (8) The record of former conviction of petit larceny offered and admitted by the court was competent testimony. State v. Loehr, 93 Mo. 103; State v. Rider, 90 Mo. 54; State v. Kelsoe, 76 Mo. 507. (9) It is competent to admit testimony as to the character of defendants' general reputation for chastity and virtue. State v. Sibley, 132 Mo. 102. (10) The jurors Mitchum, Elliot, Isaacs and James L. Warran, Jr., and W. P. Anderson were competent jurors. State v. Taylor, 35 S.W. 92; State v. Bryant, 93 Mo. 273; People v. Reynolds, 16 Cal. 128; State v. Taylor, 35 S.W. 92; State v. Duffy, 124 Mo. 1; State v. Williamson, 106 Mo. 169; State v. Cunningham, 100 Mo. 386. (11) The court was right in refusing to allow papers read by jurors and report of coroner's inquest read in evidence. Ellison v. Commonwealth, 99 Pa. St. 32. (12) The discretion of the trial court in passing upon application for continuance will not be interfered with by the appellate court unless it clearly appears that such discretion had been abused to the prejudice of the defendant's rights. State v. Banks, 118 Mo. 118. (13) A temporary separation of one juror from the remainder under official supervision, when separation is made a necessity, will not constitute a reversible error. State v. Collins, 86 Mo. 245; State v. Payton, 90 Mo. 220; State v. Washburn, 91 Mo. 574. (14) The remarks of counsel in this case were warranted by the facts in proof and the common knowledge of mankind. State v. Punshon, 133 Mo. 59; State v. Musick, 101 Mo. 273, 274; State v. Zumbunson, 86 Mo. 112, 113; State v. Stark, 72 Mo. 37.

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

OPINION

Gantt, P. J.

At the October term, 1895, of the circuit court of Pettis county the defendant was indicted by the name of William Dyer, jointly with one Lucy McBowers for the murder of Thompson Walker. The court convened on the seventh day of October, 1895, and on the eighth of October the grand jury returned into open court through their foreman an indictment for murder in the first degree, and on the same day the defendants were brought into court, the indictment read to them and an order made upon the clerk to make out a certified copy of the indictment, and the record shows this was done and the copy delivered to defendant at 1 o'clock and fifty-five minutes in the afternoon of said October 8, 1895. On the tenth day of October, 1895, both defendants were brought into court and they informed the court that they were without counsel, and thereupon the court appointed two members of the Pettis bar to defend them. At 2:20 P. M. of the tenth the defendants were arraigned and pleaded "Not guilty." The defendant Dyer gave as his true name William Smiley. Afterward the said cause was continued by consent to the next term. At the January term, 1896, an application for continuance was filed and overruled, likewise a motion to quash was filed and overruled. At the same term defendants asked for a change of venue and their application was denied. To the action of the court in denying them a continuance and in overruling their application for change of venue, defendants duly excepted. A severance was granted and defendant Dyer was put upon his trial...