The State v. Yandell
| Decision Date | 05 March 1907 |
| Citation | 100 S.W. 466,201 Mo. 646 |
| Parties | THE STATE v. JAMES YANDELL, Appellant |
| Court | Missouri Supreme Court |
Appeal from Douglas Circuit Court. -- Hon. F. C. Johnston, Special Judge.
Affirmed.
J. S Clarke for appellant.
(1) The charge set forth in the information is "second offense" burglary and larceny (sec. 2379, R. S. 1899) and under such charge, if sustained by the evidence, the punishment must be imprisonment for life; hence defendant was entitled to his statutory challenge of twenty men instead of twelve. Sec. 1890, R. S. 1899. The degree or severity of punishment determines the number of peremptory challenges the defendant in any criminal case is entitled to, and such number is based solely on the charge in the indictment or information, and in determining the number of peremptory challenges the defendant was entitled to in this case, we only have to examine the information to find what the charge against him is, and what degree of punishment the State sought to inflict. It is obvious that the State sought to charge and prove an offense punishable solely by life imprisonment, and have thus far succeeded in such attempt. (2) After the jury was sworn to try the cause and had heard part of the evidence, the defendant could not consent, in this kind of case, to the discharge of juror Hale, and replacing him by one Martin without any preliminary qualifications as a juror. There is nothing to show that Martin was of the age of twenty-one years, that he was not of kin to the parties in interest, that he was a resident of the county of Douglas, or even State of Missouri. He was simply agreed upon by the State and defendant's counsel, to take the place of juror Hale and was sworn to try the case in the usual way. A defendant in a criminal case may waive his statutory privileges concerning jurors, but not his constitutional rights. State v. Davis, 66 Mo. 684; State v. Meyers, 68 Mo. 266; Vaughn v Scad, 30 Mo. 600. In prosecutions for felonies the defendant has the right "to a public trial by an impartial jury of the county." Sec. 22, art. two Constitution of Missouri. As the juror Martin was not in any manner interrogated as to his qualifications as a juror, he may or may not have been even a resident of the county, which is a constitutional qualification and cannot be waived by defendant. If defendant could waive this right under the Constitution, then he could waive it in like manner to the full number of twelve persons. (3) The evidence to identity of the defendant is the certificate of the warden of the penitentiary, who claims to have received a James Yandell into the State prison on May 23, 1901. Nothing can be presumed against defendant in this sort of case. There was no certificate of the Webster County Circuit Court clerk attached to the judgment offered in evidence by the State, to prove former convictions in this court, the certificate being attached to the last one only. The one read to the jury being the first judgment, was not a certified copy and should not have been read to the jury. State must show judgment of former conviction. State v. Brown, 115 Mo. 409.
Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
(1) In his motion for a new trial, defendant makes no mention of the admission of improper evidence for the State; neither does he complain of the refusal of the trial court to admit proper evidence for the defendant. Hence, the admission or exclusion of evidence can not be considered by this court. State v. Laycock, 141 Mo. 274. It may be stated, however, that the record of defendant's former conviction of burglary and larceny, and his service of a term in and discharge from the penitentiary, were properly admitted in evidence; and the same showed that he was an habitual criminal. R. S. 1899, sec. 2379; State v. Carr, 146 Mo. 1. (2) The record wholly fails to show what, if any, instructions were asked or given in this case. So the question of the giving and refusing of instructions can not be considered by this court, especially as the defendant made no objections and saved no exceptions to the instructions at the time. State v. Eaton, 191 Mo. 157; State v. King, 194 Mo. 474; State v. Reed, 89 Mo. 171; State v. Morgan, 95 S.W. 402. (3) There is nothing in the record to show that defendant made any objections to the number of jurors on the panel till after the twelve were selected, or that he asked for additional jurors before making his challenges. The objection that he made to the number in his motion for a new trial was, of course, too late. State v. Waters, 62 Mo. 196; State v. Klinger, 46 Mo. 224. But it is insisted that, under the statute, defendant was only entitled to a panel of thirty men, which the record shows were qualified in this case. R. S. 1899, secs. 2619 and 2621. (4) Defendant's main contention seems to be that error was committed by the trial court in excusing juror Hale and in substituting in his place juror Martin. The record, however, shows that this was done by the consent of defendant; and the record nowhere shows that any objections were made thereto till he filed his motion for a new trial. While a defendant in a criminal case has certain statutory rights, yet he may waive them, as was clearly done in this case. State v. Waters, supra; State v. Klinger, supra. As defendant consented to this at the time, he can not now be heard to complain. State v. Baber, 74 Mo. 297. His failing to make objections and save his exceptions at the time constituted a waiver. State v. Smith, 114 Mo. 423; State v. Sansone, 116 Mo. 11; State v. Howard, 118 Mo. 133. But aside from the question of waiver, the trial court had a perfect right to excuse one of the jurors, on account of sickness or death in his family, and to select another juror, and to begin the trial again. Thompson-Merriam on Juries, sec. 273; 1 Bishop's New Crim. Proc., sec. 948; Proffatt on Jury Trials, sec. 139; State v. Moncla, 39 La. Ann. 868; People v. Stewart, 64 Cal. 60; Parsons v. State, 22 Ala. 50; Pannell v. State, 29 Ga. 681; Nolen v. State, 2 Head (Tenn.) 520; 12 Encyc. of Plead. & Prac., 657. (5) Defendant, in his motion for a new trial, does not allege that the verdict was against the weight of evidence, nor that there was not sufficient evidence to justify the verdict. The simple statement of this case shows that the evidence was sufficient, and amply sufficient, to sustain the verdict. The possession of stolen goods, recently after they are stolen, raises a presumption that the party in possession is guilty of both larceny and burglary. State v. Warford, 106 Mo. 62; State v. Babb, 76 Mo. 503. It is true that all of the stolen property was not found; but proof that a part of same was in the possession of the defendant recently after the larceny, was sufficient, in connection with other circumstances, to fix the guilt on defendant of stealing all of said property. State v. James, 194 Mo. 269; State v. Owens, 79 Mo. 625. The letter written by defendant to the Caudle woman was not only admissible, but it tended to show that the defendant was guilty of attempted subornation of perjury, and that, too, in connection with this case. State v. Alexander, 119 Mo. 461; Fulkerson v. Murdock, 53 Mo.App. 154. "Evidence to show that the accused has attempted to fabricate or procure false evidence, or destroy evidence against himself, . . . . is always admissible as showing a consciousness of guilt, and is of particular value where the incriminating evidence is mainly circumstantial." Underhill on Crim. Evid., sec. 121; 1 Wigmore on Evidence, secs. 277-8; 4 Elliott on Evidence, sec. 2712; 1 Greenl. on Evidence, secs. 37 and 195a; State v. Ward, 61 Vt. 194; Allen v. United States, 164 U.S. 499. There being substantial evidence of the guilt of the defendant, this court will not undertake to weigh the same; but will leave that duty to the jury. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.
Under an information duly verified and filed by the prosecuting attorney of Douglas county, charging the defendant with burglary and larceny and with being an habitual criminal, defendant was convicted in the circuit court of said county on the 23rd day of June, 1906, and his punishment fixed at imprisonment in the penitentiary for the term of his natural life.
The offense was alleged to have been committed January 3, 1906; the building alleged to have been burglarized was a storehouse belonging to T. N. and F. M. Smallwood, from which various articles of dry goods, shoes and jewelry, of the value of $ 94.45, were alleged to have been stolen by defendant.
In due time after verdict the defendant filed motions for a new trial and in arrest, which were overruled, and he appeals.
The State's evidence tended to prove that T. N. and F. M Smallwood were the owners of a store building situated in the town of Denlow in Douglas county, Missouri, and that on the night of the 3rd of January, 1906, the doors and windows of said building were securely fastened. The next morning they discovered that one of the windows, which had been fastened at the top with a nail, had been prized open and the window sash taken out and set on the ground against the side of the wall. Some shoes, some men's overshoes, two bolts of red flannel, one bolt of eider down, a hat, fifty-five finger rings, four watches and some bracelets were missing; also fifty pennies and some blue pocket handkerchiefs, all of the value of $ 94. The evidence further showed that early on the evening of the burglary there had been a slight rain, and immediately afterwards there was a fall in...
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