65 Mo. 149 | Mo. | 1877
At the January term, 1877, of the Audrain Circuit Court, the defendant was indicted for .murder in the first degree, charged with killing Jefferson D. Lowry. At an adjourned term of said court, held in February, 1877, the defendant was tried, convicted of murder in the second degree, and his punishment assessed by the jury at imprisonment in the penitentiary for a term of eighty-three years, but the court commuted it to sixty years and sentenced him for that term. From this judgment of the Circuit Court he has appealed to this court. The grounds upon which it is urged that the judgment should be reversed are, that the court did not instruct the jury in regard to manslaughter, but confined its instructions to murder in the first and second degree and excusable homicide; that the court refused to permit Glasscock, a witness for the State, after he had testified to a part, to detail all of a conversation he had with defendant in relation to the killing of Lowry; that the jury were guilty of misconduct, in first agreeing that each should set down on a slip of paper the term for which he thought defendant should be confined in the penitentiary, and then divide the aggregate of these figures by twelve and make the quotient their verdict; that this agreement was carried out, and the result was the verdict returned into court. On a motion for a new trial the defense offered to prove this by a member of the jury, but the court refused to permit the juror to testify. The evidence tended to prove the following facts : On the day that the homicide occurred, the defendant and the deceased, with others, were at a saloon in the town of Vandalia, when defendant and one Hampton quarreled over a game of cards, each claiming the game,
On the trial the State introduced H. Glasscock, the sheriff, who testified as follows : Defendant came into my custody about five minutes after the shooting, I asked him why he had shot Lowry. lie said he did not know why he had done it; and defendant continued to talk about the matter, when Esq.. Brashears told him not to talk so much, or not talk about the matter. I then took defendant to Esq. Brash ears’s house. He continued to talk all the way down there. We ate supper together, and after an hour or so, defendant and I went to bed. Defendant was talking about the matter all the time, from the time I asked him why he had shot Lowry, until toe went to bed. On cross-examination, he said: “ This conversation between defendant and myself, he doing the most of the talking, toas continued with but little interruption from
The finding of a verdict by a jury, as here alleged, is such misconduct as will invalidate it. This has been held whenever the question has been considered foy a court 0f last resort, with perhaps one or two exceptions; but there is almost an equal unanimity opinion, that the jurors will not be admitted to prove such misconduct. In Grinnell v. Phillips, 1 Mass. 541, a contrary doctrine was held, and in Pratte v. Coffman, 33 Mo. 72, it was intimated that cases might arise involving life and liberty, in which the rule might be departed from, but the case in 1st Mass, has been overruled by a series of later decisions in that State; and in this State, the cases of Sawyer v. The H. and St. Jo. R. R. Co., 37 Mo. 263; State v. Coupenhaver, 39 Mo. 39, and State v. Underwood, 57 Mo. 40, have terminated the controversy,
Reversed.