166 Mo. 106 | Mo. | 1901
DeWitt Bell, tried on a charge of murder in the first degree, found guilty of manslaughter in the fourth degree, and sentenced to two years imprisonment in the penitentiary, appeals to this court.
No bill of exceptions has been preserved, and eonse^ quently, only the record and its recitals are presented for examination.
Defendant is not represented in this court.
The record shows that on the fourth day of the term, being the twenty-eighth day of Eebruaxy, 1901, “a list of the jury (thirty men) was delivered to the defendant’s attorney at 2:30 o’clock p. m.” There is no recital in the record that defendant was tried for murder in the second degree, or that he waived his right to a panel of forty men, or that he filed any motion asking that a list of forty qualified jurors be furnished him, or that any exceptions were saved to the action of the court in making a list of only thirty.
Eor what degree of homicide defendant was tried, does not directly appear. Under the first clause of section 2619, Revised Statutes 1899, if tried for murder in the first degree, defendant was entitled to twenty peremptory challenges, and the State to eight, under section 2621.
And defendant being entitled to twenty peremptory challenges and the State to eight, these being added to the twelve required for the trial panel, would make forty; and under sec
But, a defendant could waive his right to a complete general panel, before making his peremptory challenges, “if he so desired,’’ just with the same degree of facility that the State could. And no other doctrine is announced in State v. Davis, 66 Mo. 684.
It was not said there, nor ruled there “that one indicted for robbery in the first degree can not waive his right to a panel of thirty men.” But we did rule that a prosecuting attorney could nqt make any effectual proposal to the defendant in that case to proceed to challenge, etc., before a number competent to complete the general panel had been obtained; and we said on this point: “The court should have enforced the order for summoning six additional jurors, and promptly rebuked the prosecuting attorney when making his improper proposal to the opposing counsel.....The very term ‘waiver’ imports a voluntary act, and an act can not be thus denominated when performed under conditions of practical compulsion. If the accused fails to object to an improper proposal coming from the representative of the State, he thereby loses a right guaranteed to him by the law. If he objects, he thereby jeopards his right to an impartial trial by jury, guaranteed to him by the Constitution. Under such circumstances to hold the prisoner hound by an involuntary (so-called) and extorted consent,
How, in the face of such plain language, the conclusion has been reached that this court had ruled as stated by the special representative of the State, is beyond the range of ordinary human perception.
But it is wholly immaterial what may have been our rulings on the point mentioned, or what the statutory provisions thereon, for the reason that this case does not turn on the point of record recitals at all, and for this reason: The matter of failing to provide a complete general panel before calling on a party defendant to make his challenges, is a matter of exception, pure and simple; and such party, if he fail to except at the proper time and to properly preserve such, his exception, any redress for him is out of reach of judicial interposition; and all the record recitals in the world will not save his lost, because non-preserved, rights.
A bill of exceptions, as this court has often said, is the only repository known to the law for saving and preserving matters of exception, and no substitute can supplant or supply the use of such bill. [Nichols v. Stevens, 123 Mo. loc. cit. 119 and cas. cit.; State v. Wear, 145 Mo. loc. cit. 204, 205, and cas. cit.]
In consequence of these views, and because there is no bill of exceptions and no error apparent on the record proper, the judgment will be affirmed.
