33 Mo. 483 | Mo. | 1863
delivered the opinion of the court.
The defendant and one Wilson were indicted at the March term, 1862, of the St. Louis Criminal Court, for the murder of John C. Gilmore, a police officer of the city of St. Louis. A severance being had, the defendant was tried at the July term following, and convicted of murder in the first degree, and sentenced to be executed. From this judgment he appeals to this court.
For the purposes of this case, it is unnecessary to give more than a mere outline of the testimony, as the main ground relied upon for a reversal has no reference to the evidence. In December, 1861, and about two o’clock at night, a burglary was committed upon the premises of a man by the name of Doctor, at the corner of Jefferson and Ninth streets, in St. Louis. Doctor being aroused by the noise, encountered one of the burglars, who knocked him down, and who afterwards
Two other witnesses testified that, about seven o’clock on the morning of the 10th December, they heard the report of a pistol, which came from the house of Wilson and Burns, both of whom were well known to witnesses, and immediately afterwards Wilson ran out of the house and through the gate to the pavement; stood still for a few seconds, looking back at the house with a smile on his face ; Burns then came out of the house, having hold of deceased, with his left hand round his neck from behind, and holding deceased’s right arm by the elbow, and after passing through the gate, threw the
Gilmore died on the 24th of December from the wounds received, and during his confinement expressed a firm belief that his wounds were mortal, and that he must die. On the shoulder of deceased was also found a black spot indicative that he had received a blow from a slung shot, or other blunt instrument. Wilson and Burns were afterwards arrested in the State of Pennsylvania and brought to St. Louis.
The main ground of error relied upon by the prisoner’s counsel relates to the empannelling of the jury. It seems from the bill of exceptions that the regular panel was exhausted without being able to obtain more than ten who were competent to serve .as jurors, whereupon the court ordered a venire to issue for an additional number, and while the officer was engaged in executing the writ the court proceeded with other business, and tried another case on the same day, the ten veniremen, selected as aforesaid, forming a part of the jury. Upon the conclusion of the case, the writ of venire was returned and two additional jurors selected, making the panel complete, and the usual time of adjournment having arrived, the court discharged the jurors until the following morning, with the usual injunction not to speak to any person about the case, nor to allow any person to approach them concerning it. They had not yet been sworn or empannelled, nor was any objection to this course made by the prisoner or his counsel.
It is contended by the prisoner’s counsel that in permitting them thus to separate, the court below committed an error which vitiates the verdict. Being desirous of giving the defendant the full benefit of this objection, we have examined with much care all the authorities cited by his counsel, but have been unable to find a single case which supports the objection-
The cases cited in 7 and 8 Humphrey also refer to the conduct of the jury after being sworn and charged.
In McLain v. The State, (10 Yerg. 241,) the separation took place not only after the jury were sworn, but after hearing a part of the evidence.
In McCann v. State, (9 Sm. & Marsh. 465,) the judgment was reversed because the jury for a portion of the time during the trial, and after their retirement, were not under the care and charge of a swurn officer of the court.
In Boles v. The State, (13 Sm. & Marsh, 398,) the verdict was set aside because persons not of the jury were permitted to visit and mingle with the jury after the cause had been submitted to them, and they had retired to consider of their verdict.
In Cornelius v. The State, (7 Eng., Ark., 782,) some of the jurors, after the commencement of the trial, were seen walking in the street.
These cases, cited by the learned counsel for the prisoner, relate to misconduct of the jury after being sworn and empannelled, and in some of them after hearing a portion of the evidence; they therefore furnish no authority in favor of the ground taken by the prisoner, for in the case at bar neither of the veniremen had been sworn, and were still subject to challenge. In fact, they were not yet jurors, and not therefore in the custody of any officer of the court. Though selected by both State and prisoner, they were not clothed with the power and authority of a jury, but were still subject to be set aside, excused or challenged.
Wharton, in his Treatise on Criminal Law, p. 273, says,
We are therefore of the opinion that the separation of the veniremen in this case, before being sworn and empannelled, furnishes no ground for a new trial.
We have carefully examined the instructions given by the court, and, with the exception of one or two, they are sirch as are usually given in cases of homicide, and have been time and again approved of by this court. The defendant asked several instructions, which were refused — some of which were very properly refused — while others which were unobjectionable were substantially given in the instructions framed by the court. In the argument, particular complaint is made because the defendant’s fifth instruction was refused. The instruction is as follows :
“If the jury believe that the dying declarations of Gilmore were not made in extremis, and not at a time and under circumstances when the said Gilmore was impressed with the conviction of death resulting from the illness with which he was then confined, then the jury will discard such declarations, although they believe the evidence in respect thereto to be true.”
This instruction was very properly refused, for it left it to the jury to pass upon the admissibility of the declarations, a question solely for the consideration of the court and notior
The court, however, will look at the preliminary proof to ascertain if the declarations were properly admitted. One of the witnesses who visited him frequently during his illness, told him he thought he would recover. Deceased stated in reply that he would not recover; that he was a dead man anyhow ; that he could not survive, and that he felt that he was mortifying; that he only regretted it on account of his children and family, and that he did not like to speak before his wife of his approaching death. It was also shown that he never entertained the slightest hope of a recovery, but labored under a settled conviction that his death was near at hand.
It is difficult to imagine a stronger case than this for the admission of dying declarations. Upon the whole case, we think the defendant has no reason to complain of the ruling of the court below. He was defended by able counsel; received a fair and impartial trial, and obtained the full benefit of every principle of law which could be invoked in his behalf. We do not, therefore, feel at liberty to interfere with the verdict.
the judgment will be affirmed.