70 Mo. 491 | Mo. | 1879
At the February term, 1879, of the circuit court of. Laclede county, an indictment was found and returned by the grand jury into said court, charging defendant with killing George E. King. The indictment contained three counts, in the first of which, defendant is charged with murder in the second degree, and in the second and third counts of which he is charged with murder in the first degree, in killing said King. At the August term, 1879, the cause was tried, and the jury returned into court the following as their verdict: “We, the jury, find the defendant guilty as charged in the indictment.” Upon this verdict the court enteredits judgment sentencing defendant to the punishment, of death by hanging. Although it is shown by the bill of exceptions that exceptions were taken 'to almost everything done during the progress of the trial, but two of them are of sufficient importance to demand the attention of defendant’s counsel in his brief, and they are, first, that the court erred in accepting on the panel of forty jurors persons who, by reason of having formed opinions, were not qualified to serve; second, that the verdict of the jury does not authorize the judgment rendered Upon it.
Under said section the precise question now presented to us was considered by this court in the case of Baldwin v. The State, 12 Mo. 224, and it was held that the trial court committed no error in accepting a juror as qualified, who, upon an examination touching his qualifications, made statements substantially the same as those made by the jurors in the present case and copied above. So in the case of State v. Davis, 29 Mo. 391, the question again arose, and in the disposition of it, it was observed: “ The jurors were examined upon their voir dire, and stated that they had formed an opinion, but it was upon rumor, and was not such as to bias or prejudice their minds. This has been the law in this State, and such jurors have invariably been held competent. * * Such is the growing aversion to serving on juries that unless this rule is adhered to, it will be impossible to obtain competent jurors.” The same principle was declared in the case of State v. Rose, 32 Mo. 346.
It is laid down in § 3048, 2 Whart. Crim. Law (5 Ed.) “ When there is a general verdict of guilty upon several counts relating to the same transaction, the practice is to pronounce judgment on the count charging the highest grade of offense.” “When counts are joined for offenses different but not positively repugnant, the practice is to sentence on the count containing the offense of the highest grade.” 3 Whart. Crim. Law, (7 Ed.) § 3177. “ On an indictment containing two counts relating to the same transaction, where a general verdict of guilty is rendered, such a verdict is in’effect a finding as to both counts, the’ lesser crime being thus merged in the greater, and judgment must be for the greater.” 1 Whart. Crim. Law, (7 Ed.) § 421.
In the case of State v. Pitts, 58 Mo. 558, in disposing of the question whether a general finding of guilty when an indictment contains three counts will support a judgment, it was observed, “that when, as in the case at bar, the several counts relate to the same transaction, and are framed on different sections of the Statute to meet the exigencies
Besides this, the instructions given by the court related only to murder in the first degree, and under the evidence defendant was either guilty of murder in that degree or nothing, and so the jury were in effect directed. No instruction relating to any other degree of homicide would have been warranted by the evidence. There was no witness to the tragedy. The body of deceased, shot in two places, with the skull beaten till it was fractured, was found one-quarter of a mile from where he lived and about 100 yards from a road which passed his house. All the evidence, which was circumstantial, tends strongly, if not conclusively, to show that about one o’clock of the day on which the tragedy occurred, King, the deceased, who was returning home from a neighbor’s house one-half mile distant from his own, was met in the road and shot by the defendant, and then pursued about 100 yards and his skull beaten till it was fractured.’ Perceiving no error in the record the judgment is affirmed.