The State v. Jeffries
| Decision Date | 17 March 1908 |
| Parties | THE STATE v. WILLIAM JEFFRIES, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. -- Hon. Jas. D. Barnett Judge.
Affirmed.
Wilfred Jones and George Eigel for appellant.
(1) The motion to quash raised three principal points of objection (a) That Willis Hood, who is a joint defendant in this case was informed against without his ever having been granted a preliminary examination. (b) That William Jeffries' preliminary examination was not in accordance to law. (c) That the State had purposely refrained from endorsing names of known material witnesses on the information. The defense proved all of these allegations by evidence and testimony at the hearing on the motion. Sec. 2476a, Laws 1905, p. 133. Section 2447, Revised Statutes 1899, provides that on the hearing in preliminary examinations the examining magistrate shall examine the complainant and witnesses produced in support of the prosecution, on oath. This was not done. Five witnesses were all that were endorsed upon the information, although this was the second information drawn in the case, and was drawn over nine months after the killing of deceased. That the prosecuting attorney knew of other witnesses previous to drawing the information is proven by the subpoenas made out by him for witnesses Mike Wussler, Fred Walkenhorst and Nellie Jeffries, as well as by their testimony before the coroner, which was in his hands. The testimony of Annie Wussler, taken before the coroner, also informs him that Edna Wussler was a material witness for the State. On the stand himself, the prosecuting attorney admits that he knew of Sheriff Hines being a witness for the State, and also that he knew of other witnesses than those endorsed and might make use of them. State v. Roy, 83 Mo. 268; R. S. 1899, sec. 2517. (2) The challenge to the array of jurors was upon the ground that the sheriff, the summoning officer, on account of his bias and prejudice against the defendant and of his being a witness for the prosecution, was not the proper party to summons the jury. The jury in the case was a special venire and the officer had absolute right to summons whomsoever he pleased. Although the State sought to conceal the fact that Sheriff Hines was to be a witness, he was made use of as a witness and proved to be a material witness for the State. The defense also maintains that in the evidence adduced at the hearing on this question bias and prejudice are shown to exist in the sheriff and his officers against defendant. Objection to jurors on account of the sheriff who summons them is reached by challenge to the array. State v. Weedem, 133 Mo. 70. A sheriff who is a witness for the prosecution is disqualified to summon the jurors, on account of the bias and prejudice he is presumed to possess. State v. Powers, 136 Mo. 194; State v. Hultz, 106 Mo. 41. (3) Failure to endorse the names of all the material witnesses upon an information, if properly objected and excepted to, constitutes reversible error. R. S. 1899, sec. 2517; State v. Roy, 83 Mo. 268; State v. Grady, 84 Mo. 220; State v. Steifel, 106 Mo. 129; State v. Cole, 145 Mo. 672; State v. Nettles, 153 Mo. 464; State v. Bailey, 190 Mo. 278; State v. Barrington, 198 Mo. 124. (4) At the close of the State's case and again at the close of all of the evidence in the case, the defendant demurred to the evidence under the first count of the information, which demurrer was by the court overruled and by the defense excepted to. There is absolutely no evidence to show that Willis Hood shot the deceased, and this first count should have been dismissed. (5) It was improper to allow in evidence all of the articles said to have been found by the sheriff and his posse. State v. Thomas, 99 Mo. 257; State v. Goddard, 162 Mo. 227. (6) The defense at once upon learning of the jury's conduct on the night of April 26th, acquainted the court with such fact, and swore to the information, at the same time requesting the jury's discharge. Thus, the court had full knowledge of it and overruled the request of defendant. (7) Improper conduct and remarks of the prosecuting attorney in making his argument to the jury constitute reversible error. State v. Elmer, 115 Mo. 401; State v. Ulrich, 110 Mo. 350; State v. Young, 97 Mo. 666; State v. Graves, 95 Mo. 510; State v Pagels, 92 Mo. 300; State v. Fisher, 124 Mo. 460; State v. Bobbst, 131 Mo. 328; State v. Barrington, 198 Mo. 132; State v. Snyder, 182 Mo. 462; State v. Gillespie, 104 Mo.App. 400; State v. Rose, 178 Mo. 25. (8) The act of the jurors in attending a public performance of a theatrical play in the public playhouse in St. Charles on the night of April 26th, which was during the course of the trial and before the State had closed its case, was first called to the court's attention on the morning of April 28th, before the convening of court, in a motion verified by affidavit, filed and called to the court's attention. Again in the motion for a new trial this act was made the 20th ground of said motion. Sheriff Hines was not in charge of the jury. They were under the charge of Deputy Sheriff Hehner. Hines was a material witness for the State, and was, also, as defendant believed and still believes, prejudiced against him. The jurors were made his guests at this evening's entertainment. It was misconduct for the jury to attend a theatrical performance in company with an officer, even though he be the sheriff, if he was a witness for the prosecution and gave testimony in the case. State v. Snyder, 20 Kan. 306; People v. Knapp, 42 Mich. 267; State v. Bailey, 32 Kan. 84; Ganey v. People, 97 Ill. 270; Tarkington v. State, 72 Miss. 741; McElrath v. State, 2 Swan. (Tenn.) 378.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) (a) No error was committed by the court in overruling the defendant's motion to quash the information. (b) An affidavit was filed with the justice, charging the defendant with the murder of William Wussler and a preliminary examination was held. A number of witnesses testified for the State, and their testimony was reduced to writing. After hearing their evidence, the justice of the peace concluded that there was probable cause to believe that the defendant was guilty of murder in the first degree, and so found. This was a compliance with our statute, and was all that the defendant was entitled to. R. S. 1899, secs. 2457, 2461. (2) No error was committed by the court in overruling the motion to quash, because the names of certain important witnesses were not endorsed upon the information. State v Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 196 Mo. 110. (3) No error was committed by the trial court in overruling defendant's challenge to the array of jurors after they had been summoned, on account of the alleged bias and prejudice of the sheriff. If the defendant desired to object to the sheriff summoning the jurors, timely motion should have been made before the venire had been summoned, and the defendant should not have waited until the jurors were in court. The question, however, of whether or not the sheriff is biased or prejudiced, either for the State or for the defense, is a question peculiarly proper for the trial court to pass upon. State v. Hultz, 106 Mo. 41. (4) Counsel for defendant argue, with much earnestness, that the court erred in permitting witnesses to testify whose names had not been endorsed on the back of the information, and especially in view of the fact that some of them were material witnesses. This matter, too, has been decided recently by this court, and reference to said decisions need only be made. State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 196 Mo. 110. (5) The trial court did not err in permitting State's witness Edna Wussler to testify, she being a child of tender years. This little girl showed remarkable intelligence, and showed that she fully understood the importance of her testimony, as well as the importance of telling the truth. R. S. 1899, sec. 4659. State v. Nelson, 172 Mo. 198; State v. Doyle, 107 Mo. 42; Rapalje on the Law of Witnesses, sec. 7. (6) No error was committed in overruling defendant's demurrer at the close of the State's evidence, and also at the close of all the evidence. The State had the right to charge the commission of a crime in several different ways, and the jury are entitled to pass upon the evidence and find the defendant guilty under whichever count the jury believe the evidence sustains a conviction. It was not error to overrule defendant's motion to require the State to elect, as both of said counts related to the same transaction. State v. Schmidt, 137 Mo. 226; State v. Houx, 109 Mo. 654; State v. Pratt, 98 Mo. 482. (7) No error was committed by the court in allowing the jury to go in company with the sheriff and attend a theatrical performance during the progress of the trial. The trial was a long one, and the jurors, no doubt, became weary during its progress. As there was a total failure of any showing of misconduct on the part of the jury, or misconduct on the part of the sheriff, this assignment of error becomes immaterial. (8) The argument of the prosecuting attorney was proper and legitimate. It is true he denounced the crime which the defendant committed, denounced it in strong language, and the evidence fully justified his denunciation. A prosecutor cannot too strenuously denounce the assassination of a prominent citizen of the county by two men whose object and desire was to rob him of his money and valuables. If such conduct cannot be denounced by our prosecutors, then there is very little need of the prosecuting attorney making any...
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