State v. Clark, 121 Mo. 500

121 Mo. 500 | Mo. | 1894

Sherwood, J.

I. We see no reáson to doubt the correctness of the action of the trial court. It certainly proceeded in conformity with section 6 of the act of 1891, already referred to, which provides that, “when a jury for the trial of a cause can not he made up from the regular panel, the judge of the court before whom the cause is pending may make out and deliver to the proper officer a list of jurors sufficient to complete the panel,” etc. State v. Sansone, 116 Mo. 1.

II. And, even if error did occur, there was a clear waiver of it .by .the course of conduct pursued by defendant’s counsel from time to time, while they were engaged in manufacturing excuses for additional delays. The reports of this court abound with instances where, in similar circumstances, the doctrine of waiver has been applied. Some of these cases appear in the briefs of counsel.

. Parties litigant are not allowed to take inconsistent positions, as attempted in the present instance. They will not be permitted to cause the court and adversary counsel to pursue a certain course, and then at the outcome deny and repudiate the legal validity pf that very line of conduct, and thus “tread back and trip up the heels of their. adversary. ” Slack v. Lyon, 9 Pick. 62: Brown v. Bowen, 90 Mo. 184; Bigelow on Estop. [3 Ed.], pp. 562, 601, 602; McClanahan v. West, 100 Mo. 309.

III. At common law, and where unchanged by statute, a challenge to the array had to be made in writing, though challenges to one or more individuals on the panel could be made ore tenus. 1 Chit. Crim. Law, 546; 2 Tidd’s Prac., 851; People v. M’Kay, 18 Johns, loc. cit. 218. And after a challenge to the array, the party may challenge the polls; but after he has excepted to any of the individual jurymen, he can not object to the whole panel. 1 Chitty’s Crim. Law, 545.

In this instance though the first challenge to the array was one in form, yet it was based on objections to four individuals of that panel, and for the reason that they were over the age of sixty-five years. This challenge, therefore, was simply a challenge to the polls, and after such a challenge a party is not allowed to challenge the array. So that, the trial court on that ground alone, properly denied the subsequent challenge to the array, inasmuch as, under the authorities cited, the challenge to the array had been waived.

IV. The offer on behalf of defendant to introduce evidence to contradict the records of the court and the recitals of the facts as now contained in the bill of exceptions was properly rejected. No number of witnesses could be received to accomplish such a result. State v. Blunt, 110 Mo. 322; State v. Hayes, 81 Mo. 574; State v. McNamara, 100 Mo. loc. cit. 122, 123. The trial judge, knowing what his records should and did contain, would have stultified himself had he permitted any witness or witnesses to have gainsaid the truth of those records. The recitals in the bill of exceptions already quoted, importing absolute verity, place this matter on an impregnable basis.

Y. In conclusion, the verdict of the jury could not. have been otherwise. The defendant stands before us-•a murderer self-confessed, without a single palliating circumstance to extenuate the enormity of his brutal crime. We, therefore,' affirm the judgment and direct that the sentence pronounced be executed.

All concur.