The State v. Welsor

• Decision Date: 06 November 1893
• Citation: 21 S.W. 443,117 Mo. 570
• Parties: The State v. Welsor, Appellant
• Court: Missouri Supreme Court

21 S.W. 443

117 Mo. 570

The State v. Welsor, Appellant

Supreme Court of Missouri

November 6, 1893

Appeal from St. Louis Criminal Court. -- Hon. J. C. Normile, Judge.

Affirmed.

Charles T. Noland for appellant.

(1) The court erred in sustaining the state's challenge to juror Alterange on the sole ground that he could not read and write the English language. Constitution, art. 2, sec. 28; Nolen v. State, 9 Tex.App. 419; Trinidad v Simpson, 10 Cent. L. J. 149. (2) The court erred in overruling defendant's challenge to juror Charles Scott. State v. Brooks, 92 Mo. 542; State v Culler, 82 Mo. 623; State v. Bryant, 93 Mo 279. (3) The court erred in refusing a new trial because of juror Bickerford's sleeping while important evidence was introduced -- which fact was unknown at the time by defendant. Oleson v. Meader, 40 Iowa 662; McDaniels v. McDaniels, 40 Vt. 363; 2 Thompson on Trials, sec. 2620; Norwell v. Devall, 50 Mo. 272. (4) The verdict is so contrary to the evidence that it must be ascribed to prejudice. State v. Prim, 98 Mo. 368; State v. Castor, 93 Mo. 242; State v. Jaeger, 66 Mo. 173. (5) The evidence of Mollie Green as to what Mrs. Manning said to her in defendant's absence was not admissible as a dying declaration or as a part of the res gestoe. Among others, these were especially objectionable: "Mollie, he shot me for my money. Don't forget that;" and: "He came in, demanded the money, and I wouldn't give it up, and he kept shooting me to make me give it up." These were simply guesses as to what motive actuated defendant. State v. Simon, 50 Mo. 370; State v. Vansant, 80 Mo. 67; State v. Elkins, 101 Mo. 344; State v. Wensall, 98 Mo. 137; State v. Parker, 96 Mo. 382; State v. Chambers, 87 Mo. 406. (6) It was error to refuse to permit defendant to show what his disposition was for peace and quiet. (7) It was error for the state to ask whether defendant wasn't morally capable of recognizing the rights of property. (8) It was error to refuse to permit Dr. Bauduy to testify that his opinion as to defendant's insanity, based on a personal examination, was strengthened by an examination into his history to see whether defendant was feigning insanity. State v. Redemeier, 71 Mo. 180 (9) The trial court erred in refusing to consider the affidavits of Thomas Koring and Charles Noland in rebuttal of the affidavits filed by the state. Howland v. Reeves, 25 Mo.App. 458; State v. Bailey, 94 Mo. 311. (10) The court erred in its instructions to the jury. (11) The court erred in refusing instructions numbered 1 and 2 offered by defendant. State v. Kotovsky, 74 Mo. 247. (12) The court erred in refusing defendant a new trial upon the ground of newly-discovered evidence, to the effect that a lady named Hall was in the room with Mrs. Manning after she was shot, and before Mollie Green returned with the beer, and that Mrs. Manning had no such conversation with Mollie Green as testified to by her. State v. Murray, 91 Mo. 95; State v. Wheeler, 94 Mo. 252; State v. Bailey, 94 Mo. 311. (13) The circuit attorney in his closing address to the jury made such improper remarks as should cause the reversal of this case. State v. Young, 99 Mo. 66; State v. Kring, 64 Mo. 591; State v. Lee, 66 Mo. 165. (14) The trial court erred in overruling defendant's motion for a new trial and in arrest of judgment.

John M. Wood, Attorney General, and A. C. Clover, Circuit Attorney, for the state.

(1) The challenge to juror Scott was properly overruled. The juror's opposition was to a bogus plea of insanity, and he distinctly stated that he had no prejudice in this case and would fairly try the prisoner's plea. State v. Baber, 74 Mo. 292; State v. Pagels, 92 Mo. 300. (2) The state's challenge to juror Alterange was properly sustained. A man who cannot read the instructions of the court should not be allowed to sit on a jury, and the statute disqualifies him. 2 Revised Statutes, appendix, sec. 9, p. 2162. (3) The statute giving the state fifteen peremptory challenges in cities having over one hundred thousand inhabitants is not unconstitutional. State v. Hayes, 78 Mo. 344. (4) It is not necessary to swear the officer in charge of the jury until the argument of counsel has closed. State v. Underwood, 76 Mo. 630. And, in the absence of evidence that either the officer in charge or anyone else had any communication with the jury, the verdict should not be set aside because the officer did not take the special oath required by the statute. State v. Hayes, 78 Mo. 600; State v. Hayes, 78 Mo. 307. (5) Where the fact of the killing is abundantly established by the evidence, as well as by the admission of the defendant in a case where the plea of insanity is interposed, it is immaterial whether testimony as to the dying declarations of the deceased was properly introduced in evidence or not. State v. Pagels, 92 Mo. 300. (6) It is well settled that a new trial will not be granted on the ground of newly-discovered evidence which is simply intended to contradict the testimony of a witness at the original trial. State v. Ray, 53 Mo. 345; State v. Butler, 67 Mo. 59; State v. Smith, 65 Mo. 313; State v. Rockett, 87 Mo. 666 (7) The trial court had the undoubted right to refuse to consider affidavits in support of the motion for new trial filed after the time. See Seaton's case, 106 Mo. 198. (8) The affidavits on the part of the state flatly contradicted those for the defense as to the alleged misconduct of juror Bickerford. The trial court found against the defendant, and its finding should be as conclusive upon this point as in a case of alleged prejudice on the part of a juror, or other misconduct. State v. Blumb, 19 S.W. 650. (9) The instructions asked by defendant were most properly refused: they suggested a theory abhorrent to the established doctrine in this state. State v. Pagels, 92 Mo. 317; State v. Miller, 20 S.W. 243. (10) The alleged improper remarks of counsel appear only in an affidavit filed by defendant's counsel. There was no exception saved at the time, and the attention of the trial court was first called to them in the motion for new trial. State v. Hayes, 81 Mo. 574; State v. Pagels, 92 Mo. 300; State v. Taylor, 98 Mo. 240.

OPINION

In Banc

Burgess J.

At the November term, 1890, of the criminal court of the city of St. Louis, appellant was indicted for murder in the first degree for shooting and killing one, Clementine Manning, with a pistol, in the city of St. Louis on August 4, 1890. He was tried and convicted of murder in the first degree at the October term, 1891. The indictment is in the usual form, and no objection is taken to it.

Motions for new trial, and in arrest of judgment were filed in proper time, and were overruled. The case is brought to this court by appeal.

One, Earnest Alterange, summoned as a juror, stated on his voire dire that he could not read and write the English language, and, on the challenge of the state, was rejected, over the objection and exception of appellant. One, Charles J. Scott, summoned as a juror, stated on his voire dire that he had no prejudice against the prisoner; had never heard of the case, and could go into the jury box without any prejudice against the prisoner, and listen to the evidence, give it its proper weight, and that if reasonably satisfied that defendant was insane, would find him not guilty. Appellant's challenge to this juror was overruled.

The evidence tended to show that deceased and her sister lived together on the first floor of a house in the city of St. Louis; that deceased and appellant had once lived together in illicit relation, but that they had quarreled and separated and that he had not called on her for over a year. On the fourth of August, 1890, about noon, deceased had been to market and was on her way home when appellant, who was in a buggy, followed her to her house. He got out of the buggy and went into the house with her. He shook hands with her sister, who was in the room at the time, and sent her to a neighboring saloon for beer; she was gone but a few minutes, and on her way back she heard several pistol shots, and when she got in the house found deceased lying on the bed in great agony, bleeding, and saw appellant leaving the house by way of the front door with a pistol in his hand.

The first to reach the house was a blacksmith. Appellant asked him to get in the buggy and ride to the police station with him and they both entered the buggy and started in that direction, but had gone but a short distance when a police sergeant met them and put appellant under arrest. The officer took the pistol from appellant, took him back to the house in the presence of deceased, who identified him as the man who had shot her. Appellant was asked by the officer why he shot her and his reply was, "Well, I shot her and it didn't matter why." The officer remarked "You have done a good job," to which appellant replied, "Yes, it makes a man good in his business to do a good job. * * * I shot her and they can take me out and put a rope around my neck as soon as they want to." Deceased died within an hour after she was shot. She received a fatal shot in the back, penetrating the kidneys, liver, small intestines, diaphragm and left lung; the abdominal cavity and left pleural cavity were found filled with clotted blood. The defense was insanity. Defendant was not sworn as a witness.

1. Numerous causes are assigned by appellant's counsel why the case should be reversed. It is urged that the trial court committed error in excusing from the jury, over defendant's objections, one, Alterange, who answered on his voire dire touching his qualifications as such juror, that he could not read and write the English language. The contention is that section 9, article 21, Appendix Revised Statutes, 1889, ...