93 Mo. 273 | Mo. | 1887
Tried on a charge of murder in the first degree, the defendant interposed the plea of insanity, resulting in a bung jury on the first trial, and on the second trial, in a verdict of guilty in manner and form as charged; judgment and sentence accordingly. Appealing from this judgment, the defendant assigns as error the following: (1) The refusal to grant the defendant a continuance. (2) The accepting of certain persons as jurors, and the retaining of them on the panel of forty, from which the trial jury were selected. (3) The exclusion of certain evidence. (4) The admission of certain evidence. (5) The giving of certain instructions on behalf of the state and the refusal to give certain instructions on behalf of the defendant. Of these assignments of error in their order:
Section 1884 of our'statute, in relation to such applications in criminal causes, is as follows :
“A motion to continue a cause, on the part of the defendant, on account of the absence of evidence, must be supported by the oath or affidavit of the defendant, or some reputable person in his behalf, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be ; and if it is for an absent witness, the affidavit must give his name, and show where he resides or may be, and the probability of procuring his testimony, and within what time, and what facts he believes the witness will prove, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured, and that the witness is not absent by the connivance, procurement, or consent of the defendant, and what diligence, if any, has been used in the premises by the defendant, and that the application is not made for vexation or delay, merely, but to obtain substantial justice in the trial of the cause.”
It will be found, on an examination of the "affidavits offered in support of the motion for a continuance, that they do not come up to the statutory standard, (a) They do not show “the true materiality of the evidence expected to be obtained,” because it is nowhere alleged in the affidavits that the defence of insanity would be interposed, and unless this were intended to be done, the evidence offered would be wholly immaterial. State v. Pagels, 92 Mo. 300. (&) It is not alleged therein that the affiants believe the testimony desired will be true.
II. The next point for determination is, whether any error occurred in selecting those persons who w;ere to compose the panel of forty, from which the trial jurors were afterwards selected. After the first one of those summoned as jurors had been examined, touching his qualifications, the defendant’s counsel gave in evidence the account of the trial and evidence, as given by the witnesses/and published in the Herald, Gazette, and another paper, the week following the first trial, these being the papers referred to by the jurors, and these papers containing substantially the same testimony as that adduced at the second trial. Our statute, touching the matter in hand, is contained in section 1897 : “It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be fried, but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.”
By this statute are the rights of this defendant, and the qualifications of those who composed the panel, to be determined. As was observed in State v. Culler, 82 Mo. 623: “ The rule of the statute, then, is the absolute disqualification of every one offered for a juror, who has formed or delivered an opinion on the issue, etc.; the exception is where such opinion is founded only on
And this doctrine is evidently but the embodiment of our statutory rule. To ascertain the condition of the minds of those who were offered to compose the general panel in the case at bar, it was, therefore, proper to interrogate them, and thus ascertain what, if any, opinions they had formed, and the nature and basis of such
Joseph Yandolah, when examined, said-. “I have formed, but don’t think I ever expressed, any opinion as to the guilt or innocence of the defendant; I read an account of the trial in the Ciarte County Gazette, and may be in the Herald ; in this account of the trial they gave what purported to be the evidence; on this I formed an opinion and have an opinion still; I live seventeen or eighteen miles from Alexandria; I know I read whatever appeared in the Gazette; it claimed to
The above quotations I have given in the language of those examined in order that there might be no room for misapprehension. The question then arises, were those, answering as aforesaid, competent to place on the general, or on the special, panel ? And this question gives birth to another one, what is meant by the statute, when it says “newspaper reports” ¶ Looking back to the statute as it was originally, it will be found that the phrase just quoted does not occur therein. R. S., 1845, p. 880, sec. 12; 2 R. S., 1855, p. 1191, sec.
It is manifest from this ruling, that “rumor” and “newspaper reports” were regarded as legal equivalents, so far as affecting the competency of a juror is-concerned. And when the legislature, by the revision of 1879, added the words, “newspaper reports”, to the existing statute, thus coupling that phrase with the word “rumor”, it will be intended that they did so as manifesting the design of accepting that phrase with the judicial meaning thereto attached ; and by coupling the words mentioned together, in the same sentence, they meant in this instance to give legislative sanction and application to two familiar maxims, “noscitur a sociis”, and “ copulatio nerborum indicat acceptionem in eodem sensu.” McNichol v. Mercantile Agency, 74 Mo. 457. If this view is to prevail, the publications in question cannot be treated as “ newspaper reports”, but must needs occupy a higher plane of authenticity, since the newspaper publications referred to were a substantial report of the testimony, as given at the first trial, and
In treating on disqualifying opinions in these cases, it is said in a recent text-book : ‘ ‘ When it is conceded or proved that the juror holds such an opinion as disqualifies him from sitting in the case, the inquiry as to the juror’s competency is ended, and the juror must
In Michigan, where legislation followed in the wake of that of New York, the following statute was enacted in 1878:
.“Section 1. That the previous formation’ or ex*286 pression of opinion or impression, not positive in its character, in reference to the circumstances upon which any criminal prosecution is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, such opinion or impression not being positive in its character, or not being based on personal, knowledge of the facts in the case, shall not be sufficient ground of challenge, for principal cause, to any perSon who is otherwise legally qualified to serve as a juror upon the trial of such action : Provided, the person proposed as a juror, who may have formed or expressed, or has, such opinion or impression as aforesaid, shall declare on oath, that he verily believes that he can render an impartial verdict according to the evidence submitted" to the jury offisuch trial : Provided, further, the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror.”
After this act went into force, the case of Stephens v. People, 38 Mich. 739, was tried, the charge being the keeping of a disreputable house. Six of the persons summoned as jurors, on being challenged, stated'on oath that they had formed an opinion from what they had heard, or from reputation, that the house kept by defendant was of the character charged, and some of them stated that their opinions were of that character that it would take evidence to remove them, but the jurors were accepted as competent, and this was assigned as error. In passing on this point, Cooley, J., observed: “The constitution of this state provides that: ‘In every criminal prosecution, the accused shall have the right to a speedy- and public trial by an impartial jury.’ Art. 6, sec. 28. Of course, no legislation can take this right away. In Holt v. People, 13 Mich. 224, decided long-before the. act of 1873 was passed, it was decided by this court that the law did not require that a juror should be entirely unimpressed with any views as to the guilt or
The statute just copied, was a transcript of that of New York. This statute, enacted in 1872, was held constitutional in Stokes v. People, 53 N. Y. 164. Yet, notwithstanding the broad provisions of this statute, it was held in a later casé that the jurors were incompetent who had read, in a newspaper, the evidence for the prosecution on a former trial of the prisoner, and from that had formed an opinion which it would require evidence to remove, although the jurors had fully answered all the questions required by the act in question, and had been received as competent jurors ; the court remarking, “it is more than highly probable, it is as certain as any such human event not yet transpired, that the same testimony will be produced again. It has already been considered by the juror, and has satisfied his reason and produced belief, and can scarcely fail of doing so again. Each of the jurors, in the case before us, formed his impression from reading a report of the testimony given for the people. Entering the jury-box with that impression upon his mind, and having the same testimony again produced to him, before any in opposition is presented, that impression is too certainly to be deepened and fixed to be removed without difficulty. We are of the mind that one who has formed an opinion or impression from the reading or report, partial or complete, of the criminatory testimony, against a prisoner,. on- a
In a still later case, that of Balbo v. People, 80 N. Y. 484, Greenfield’s case, supra, was attempted to be distinguished, but the distinction is, by no means, satisfactory; for, in Balbo’s case, the juror had read and formed his opinion from a newspaper report of the testimony, taken at the coroner’s inquest. The opinion was clearly marked and positive, and would require strong evidence to remove, and yet the juror was held competent. In the latter case, it was held that it was harmonious and consistent with the former one. But in Balbo’s case, supra, the ruling was based exclusively upon the statute, the court remarking: “ The act of 1872 was a clear departure from the law governing challenges for cause, as it had been previously declared by the courts. It abrogates the rule, that the formation, or ex
It is quite impossible to reconcile the decisions in 80 N. Y. and 38 Mich, supra, though made under identical statutes. If the statutes of a state are to control in such matters, then our own statute, and not that of New York, and judicial decisions based thereon, should be our guide. In any event, however, Greenfield’s case, supra, in despite of the statute, and Stephens’ case, supra, on general principles, are authority for holding the jurors, in the case at bar, incompetent. In Pennsylvania, which has no statutory regulation on the subject being discussed, this case arose: Staup was tried for murder. Pending the impaneling of a jury, a proposed juror was put upon his roir dire, and, answering, said : ‘ ‘ Have formed and expressed an opinion as to the guilt or innocence of the prisoner; read evidence of former trial; still entertain that opinion, which it would take some evidence, to remove; this opinion would not bias or influence me in my judgment, if I were, sworn as a juror; this opinion was formed from reading evidence of former trial.” He further said : “If sworn as a juror, I could, and would, make up my verdict exclusively upon the evidence given here, uninfluenced and unbiased by my
In the subsequent case of Ortwein v. Commonwealth, 76 Pa. St. 414, the same learned judge, then Chief Justice, delivered the opinion of the court, in which he adhered to his ruling in Btaup’ s case, supra, making a distinction between that case and the one he was then considering, on the grounds that the opinions of the proposed jurors, though of such nature as to require evidence to remove them, yet not being “formed upon the same evidence, substantially, as would be given at the trial,” but being founded, in part, on rumor, and, in part, on testimony as taken before the coroner, as read in the newspapers, that such opinions were not of such a fixed nature, nor had such a solid basis on which to rest, as in the former case, especially since a change in the law permitting inquests to be held by a justice of the peace, in lieu of the coroner, with all the looseness incident to such investigations, so conducted. The opinion in O'Mara's case, 75 Pa. St. 424, was also delivered by-Agnew, C. J., in which he approvingly referred to the ruling in Staup's case, supra, but distinguished the case being decided from the former one on the ground
The case of Thomas v. State, 36 Tex. 315, was one where the opinion of one offered as a juror was of such a nature as would require evidence to remove, but being formed altogether on hearsay, he was held competent, because the rule of the statute, in such cases, having been complied with, nothing further could be demanded. In Black v. State, 42 Tex. 377, the statute of that state, in relation to certain specified grounds of challenge for cause, passed under review.
The statute is as follows: “It shall be a cause for' challenge * * * if, from hearsay, or otherwise, there is established in the mind of the juror such a conclusion, as to the guilt or innocence of the defendant, as will influence him in his action in finding the verdict. For the purpose of ascertaining whether the last cause of the challenge exists, the juror shall be first asked whether, in his opinion, the conclusion so established will influence his verdict. If he shall answer in the affirmative, he shall be discharged. If he shall answer in the negative, he shall be further examined by the court, or under its directions, as to how his conclusion was formed, and the extent to which it will affect his action; and if the court is not satisfied, from such examination, that he is impartial, the juror shall be discharged.” And the statute further provides that “the court is the judge, after proper examination, of the qualification of the juror.”
Walker and Black were jointly indicted for murder. McUlhenney, being offered as a juror, and
In passing upon the question of the juror’s competency, Roberts, C. J., said: “The report referred to may be presumed to be the detail of the evidence at a former trial, as given in the newspapers of the city, which is usually published in cases exciting any general interest. He must have placed reliance in the report of the evidence which he read, in order to have enabled him to have formed a conclusion at all, and the fact that, as he says himself, that it would require other and different evidence to change that opinion shows, or at least renders it probable, that it was with some considerable attention to, and consideration of, the facts reported, that he had formed his conclusion. Under such circumstances, we are of opinion that the court below, in judging of the qualification of the juror, should not have been satisfied that he was an impartial juror. The juror took bis seat in the jury-box, with a conclusion formed, when the defendant had not been heard, and without the benefit of the instructions of the court, as to the law applicable to the case. If his conclusion was in favor of the prisoner’s guilt, it was as a weight put in the scale of justice before the trial commenced. Whatever of obstinacy of character and pride of opinion he possessed had to be overcome by other evidence. There
Section 4771, of the Iowa code (-Revision of 1860) allows a challenge, for implied bias, where the juror has “formedan unqualified opinion or belief, that the prisoner is guilty, or not guilty, of the offence charged.” And, by section 4775, “ in all challenges, the court shall determine the law and the fact,” etc. In State v. Lawrence, 38 Iowa, 51, the proposed juror had heard of the killing and read a newspaper account of it, and though he said it would take some evidence or explanation to remove his opinion, yet the opinion, not being regarded as an “ unqualified opinion or belief,” under the terms of the code, he was held competent, Day, J., saying:' “ The law does not require that a juror shall be without opinion respecting a case.” The ruling in that case is bottomed wholly on the statute. The ruling made in People v. Welsh, 49 Cal. 174, was based exclusively on code provisions, with which the defendant, in making his challenges, had failed to comply. Of the two jurors mentioned in the case of O'Connor v. State, 9 Fla. 215, one of them had formed and expressed no-opinion, and the opinion of the other was only based on rumor. In Ogle's case, 33 Miss. 383, the juror who had neither formed nor expressed an opinion, but had only an “ impression" on his mind, formed from rumor, in relation to the homicide, which might require evidence to remove, was held competent. The case of Carson v. State, 50 Ala. 134, was ruled entirely upon the statute, under the terms of which the existence or non-existence-of the cause of challenge “is shown alone by the evidence of the juror.” In Wilson v. People, 94 Ill. 299,
And the statements of the juror fully met the statutory requirements. The case of Guetig v. State, 66 Ind. 94, was based upon the code practice, and the rule of stare decisis. But it is the only case I have found, whether with or without code, where a juror who had formed an opinion from. reading, in a newspaper, the testimony of witnesses, as given at a former trial, which opinion it would require some evidence to remove, was held competent. In Reynolds v. United States, 98 U. S. 145, the opinion of the juror was evidently not a fixed one, because, in the opinion of the court, it is expressly ruled that, “ if a positive and decided opinion had been formed, he would have been incompetent.”
I have reviewed these authorities thus at length, not as doubting the incompetency of the Jurors mentioned, for touching that I have no doubt, but because this court has not always been a unit on the point in hand, and the features of this case are so pronounced as to call for an authoritative decision on the subject. I do not think that our statute should receive any forced
In a case that arose under that statute, one called as a juror had formed or expressed an opinion as to the guilt or innocence of the accused, and the opinion was
So, in this case, the opinions of those called as jurors, not having been formed on “rumor and newspaper reports,” they did not fall within the terms of the proviso and were not competent. I have thought it unnecessary to go into any discussion of the constitutional rights of the defendant in the premises, for the reason that, being entitled, as already seen, to a full panel of forty qualified men from which to make his peremptory challenges, it was error to deny him such a panel.
III. I pass now to consider whether any error occurred in excluding evidence. At the former trial, under the provisions of section 1886, Revised Statutes, the prosecuting attorney had admitted that Barbour, a non-resident, would, if present, swear as stated in the affidavit for a continuance; and this affidavit was used in the former trial. At the second trial this affidavit was again offered in evidence and was rejected by the court. Was there error in this ? In State v. Berkley, 92 Mo. 41, this section was held unconstitutional, but while it was in vogue, it was only regarded as a temporary admission, one pro hao vice, and not intended to extend beyond the term at which it was made. The language of the section bears out this idea: “ The trial shall not be postponed,” i. e., that particular trial, and not all trials that might
IV. There was no error in admitting persons, though not experts, having favorable opportunities of ascertaining, by observation, the facts, to testify as to their opinion respecting the sanity of the defendant. This point is settled in this state by abundant authority.
V. Was error committed in admitting the testimony of Wm. Cooey? The plea was insanity, and it was claimed for the defence that this insanity, though in existence, and exhibiting itself more or less for years before the fatal occurrence, was exacerbated by the fact, or belief, that Lee, the deceased, had debauched the defendant’s wife. The defendant married a girl named Jennie Guinn, in May, 1885, and lived with her some five or six weeks, when a separation occurred. She lived, prior to her marriage, in Alexandria, and Wm. Cooey knew her. Over the defendant’s objection he was allowed to testify: “I know the defendant. Some time in the winter of 1885, the defendant came to me at Way land ; wanted to rent a room. It was while there was a washout of the railroad, and there was a good many railroad men at Wayland. He said he wanted to fetch a woman there and keep her in the room. He said he could make a good deal of money out of her off the railroad fellows. I asked him who the woman was and he said, ‘ you kuow her, it is Jennie Guinn.’ I had known her from a child; she is in Keokuk. I afterwards heard he married Jennie Guinn. I did not let him have the room and he did not bring her.” Was this testimony competent? The point is not free from difficulty. After some hesitation, I am inclined to regard the testimony admissible. It is true that evidence of other crimes, or attempt at crime, is not ordinarily admissible. In this instance, however, the defence had been allowed to introduce testimony showing the mental condition of the defendant, his ex
YI. In order to a proper understanding of. the instructions given and those refused, it will be proper to give a short account of the testimony. On the morning the liomicide occurred, the defendant was seen in Warsaw, Illinois, opposite Alexandria, Missouri, where the homicide took place. He had a new revolver, said he had just bought it, gave ten dollars for it, and he would make three or four fellows in Alexandria bite the dust before the sun went down. In the afternoon of the same day, he went into Bridgman’s barber-shop in ■Alexandria, wanted to be shaved in a hurry; he said this was the day of the hilling ; said he was waiting on Lige Lee (the deceased); that he was going to take him out to the old lady’s ; that he had been lying on him, and if he did not take it back, he would shoot the d — • s — n of a b — h. Said he was a “little full” ; had a half-pint bottle of liquor about half emptied in his pocket, and staggered a little as he went out; but before going showed Bridgman a new pistol, which he said he had bought. Shortly after this, on the same day, the defend
They were seen walking along, conversing in a friendly manner, as they neared the house of Mrs. Guinn, where Bryant’s wife resided with her mother. They went up to the house. Bryant went, but when Lee got to the door he retraced his steps and sat down on the yard-fence with his back towards the house. He had been sitting there but a few moments when a man’s arm was seen to project out beyond the door-facing with a pistol in the hand. The pistol was fired and Lee threw up his arms, and turned partly around as if to see from whence the shot came. Almost immediately another shot was fired from the same source, and Lee fell off the fence, with a shot through the head, dead. Bryant then stepped out of the house and walked down to where the eye witnesses, a Mrs. Shufert and her son, were standing, and coolly said that he had shot Lige Lee, but didn’t know whether he had killed him or not, but hoped to God that he had, and that there were several other men he intended to kill. Bryant then asked for a drink of water. It was given to him and he went away. There was much evidence, also, tending to show the defendant to have been insane, consisting of queer actions, frequent and purposeless wanderings, and long-continued absences from home, and inability to tell, on his return, where he had been. It was also shown that in his boy
VII. Now, as to the instructions: They will appear with this opinion. I find no fault with those given by .the court of its own motion, and they covered the whole ■range of controversy. There was no error in the first instruction. In the circumstances detailed in evidence, the defendant was either guiltless by reason of insanity, ■or else guilty of murder in the first degree, and the jury were s'o ¡instructed in that instruction. The other instructions, in relation to the crime of murder, were such as have frequently received the approval of this court. As to those on the question of insanity they also were such as this court has frequently sanctioned, and recently in Pageles case, 92 Mo. 300. For the error .aforesaid, I think the case should be reversed.
My associates concur on all points, except paragraph two, that in relation to the selection of jurors. On this point they consider that no error occurred. This review results in the affirmance of the judgment, .and it is so ordered.
separate opinion.
Norton, C. J. — In empaneling a jury in this case, the trial court refused to sustain defendant’s peremptory challenge to Peter Hancock and Joseph Vandolah, each of whom, on the voir-dire examination as to their quali
In the case of State v. Rose, 32 Mo. 346, where two jurors stated that they had formed and expressed opin
In the case of State v. Walton, 74 Mo. 275, the rule, as settled by the above-cited cases, is stated as follows : “That a juror, who, upon his examination touching his qualifications as such, answers that he had formed an impression or opinion as to the guilt or innocence of the accused, that such opinion has been formed either from rumor or newspaper reports, or from both, which it would require evidence to remove, is not an incompetent juror, provided it further appears to the satisfaction of the court that such opinion will readily yield to the evidence in the case, and that such juror, notwithstanding such opinion, will determine the issue upon the evidence
The same rule is announced in case of State v. Stein, 79 Mo. 330, and State v. Hopkirk, 84 Mo. 283. In this, last case Judge Sherwood, speaking for the court, said: “In relation to admitting certain persons to form the-
The fact cannot be ignored that in the march of civilization there are one or more newspapers in every town and county of the state, and that, as a rule, they are read with avidity by all the citizens who can read, and when a homicide or other crime is committed the enterprising journalist publishes the fact with all the attending circumstances. Such accounts are usually sought after and read with eagerness, and it is just as impossible for the reader not to be impressed by it, and not have some opinion concerning it as it is to throw black ink on a white wall without coloring it. One of these results is produced by a law of the mind and the other by a law of matter. The legislature, giving recognition to this law of the mind, expressly provided that opinions formed from newspaper reports and rumors should not disqualify a person from being a juror, unless it should further appear that such opinion would bias his judgment and prevent him from trying the case impartially, and according to the evidence adduced on the trial. If all such persons and readers of newspapers are to be excluded as incompetent jurors, the result would be that the citizen charged with a crime would, of necessity, either be compelled to have his cause submitted and tried by a jury of the most ignorant class in the community, if the state should exercise its right of peremptory challenge, or to a jury composed of that class of persons who seek to be professional jurors. Believing the rule, so uniformly followed in this state, to be in
What is said by Judge Sherwood, in the opinion filed on this branch of the case, does not express the views of the court, but in what I have written Judges Ray, Black, and Brace concur, and Judge Sherwood dissents. We concur in what is said in the opinion filed as to other questions involved in the case, and the judgment is, therefore, affirmed,