State v. Barnes

59 Mo. 154 | Mo. | 1875

Wagner, Judge,

delivered the opinion of the court.

Upon the trial in this case' irregularities were committed which must necessarily lead to a reversal.

The indictment was for murder in the second degree and the accused was arraigned and put upon trial for murder in the first degree. After several witnesses were examined, the court then stated that the trial must proceed for murder in the second degree, and there was no re-arraignment or plea of not guilty for that offense.

A party cannot be tried for a crime for which he is not indicted ; nor can a trial proceed against him for an offense for which he has not been arraigned and pleaded not guilty.

Again the record does not show that the defendant was present in court when the jury returned and delivered their verdict, nor when the court pronounced its sentence upon him. And it appears that he was absent a part of the time when the witnesses were being examined. The statute declares that no person indicted for felony can be tried unless he is personally present during the trial (Wagn. Stat., 1103, § 15); and we have always held that it was necessary for the record to show that the prisoner was in court during the trial and at the rendition of the verdict. (State vs. Mathews, 20 Mo., 55; State vs. Buckner, 25 Mo., 167; State vs. Cross, 27 Mo., 332; State vs. Braumschweig, 36 Mo., 397; State vs. Ott, 49 Mo., 326.)

The judgment must be reversed and the cause remanded, and as it appears that the defendant -is now in the penitentiary by virtue of the sentence of the court, an order will be made that he be taken therefrom and remitted to the custody-of the jailor of Clinton county,

all the judges concurring.