202 Mo. 54 | Mo. | 1907
At the April term, 1905, of the Jackson Criminal Court, .the grand jury returned an indictment charging the defendant with murder in the first degree of Henrietta Crane. On the 15th of July, 1905, the defendant was duly arraigned upon said indictment and refused to plead thereto, but stood mute, whereupon the court directed that a plea of not guilty should be entered for the defendant, and that the cause be con-
The plea in abatement alleged that the grand jury which indicted the defendant was not drawn and summoned from the body of Jackson county, as by law required, but was selected and named from a list prepared by the judge without legal authority therefor, and prayed that the same might be quashecL The motion to quash contained the same grounds, with the additional charge that the indictment failed to state facts sufficient to constitute a crime. In support of the motion to quash and the plea in abatement the defendant offered in evidence the testimony taken in another case of the State against Miller in the same court wherein the indictment was challenged and an effort made to show that the grand jury had been summoned by the marshal from a list furnished him by Judge Wofford, but in which hearing there was no evidence to sustain
Thereupon, the defendant filed an application for change of venue to some other county on the ground of the prejudice of the inhabitants of Jackson county, which application was supported by affidavits of two other witnesses. No notice of the making of this application had been given the prosecuting attorney by the counsel for the defendant prior to the filing of the same and thereupon the court overruled said application.
The defendant then filed an application for a continuance on the ground of the absence of witnesses, which application having been heard was by the court overruled.
The defendant then filed a motion by and through his attorney, W. C. Reynolds, Esq., for an order of the court to inquire into the sanity of the defendant, which motion was also overruled.
A motion to quash the panel.of jurors summoned to try the cause was then made by the defendant and overruled by the court.
At this stage of the proceedings, the defendant by another attorney, M. J. Oldham, filed a plea to the jurisdiction of the court, or rather to the jurisdiction and right of Judge Casteel to preside in the cause on the ground that the defendant himself did not make the affidavit disqualifying Judge Wofford, and that therefore Judge Wofford’s order calling upon Judge Casteel to preside was void. This plea to the jurisdiction was also overruled.
Thereupon, the defendant was rearraigned and reentered his plea of not guilty, and the jury impaneled and sworn to try the cause, and after hearing the evidence and the argument of counsel, and the instructions of the court, returned a verdict of guilty of mur
The testimony on behalf of the State tended to prove the following facts:
At the time of the homicide the defendant was about fifty-five years of age and resided in Kansas City, Missouri. He was born in the State of Illinois, and in his early manhood, and at different times thereafter, was a fireman and locomotive engineer in the service of different railroads. He had also been engaged in ' the dramshop business at Lowry City, St. Clair county, Missouri, and in the city of St. Louis, and had also been engaged in the grocery business in Memphis, Tennessee. He owned some mining property at Baxter Springs, but the evidence would seem to indicate that he had no considerable property when he was married to the deceased, Henrietta Crane. Mrs. Crane, the deceased, wife of the defendant, was from sixty-three to sixty-five years old at the time of her death, and was then, and for about two years prior thereto had been, residing at number 1101 Bayles avenue in Kansas City, Missouri. Prior to her marriage to the defendant she had been the wife of Mr. Evans, and had lived with him at Harrisonville, Missouri,' where he died about seven years before, leaving her an estate valued at from twenty-five thousand to thirty thousand dollars. The defendant had been twice married prior to his marriage to the deceased. The evidence tended to show that the defendant was a dressy, neat-appearing .man, and that sometime in the spring of 1904, he called at the home of Mrs. Evans and introduced himself and represented to her that he had been a friend of her former husband twenty years before. In the month of June, 1904, the defendant and the deceased were married, and he came to her home in Kansas City to live. Within a few months after the marriage, he obtained deeds from
The defense was insanity, and there was evidence both by lay and expert witnesses tending to establish that defense, among others, Mrs. Mary A. Logan, the wife of Cyrus Logan, and a first cousin of the defendant. She had known the defendant since 1853 or 1854, and at her house the defendant had boarded in 1901, and very frequently called at her house during the three months prior to the killing of his wife. She was of the opinion, on account of his conduct and action, that he was insane when she saw him on the fourth of July and on the day of the homicide. She judged this from the expression of his eyes and his face and his incoherent manner of talking.
Mrs. Browning, who was a sister of the defendant’s second wife, had known him for a number of years and had seen him quite often just prior to the homicide, was of the opinion that he was insane on account of the expression of his eyes and face and his nervous, disconnected way of talking.
Cyrus Logan, his first cousin on his mother’s side, had known him since 1853 or 1854, and testified that he acted strangely, and from his conduct and the ex
These witnesses also testified to the insaMty of Benjamin Logan, an uncle of the defendant, who died in the insane-asylum at Fulton, and to the insanity of Cora Freeman, an aunt of the defendant, and to the insanity of Enoch Logan, an uncle of the defendant.
C. D. Crane, a brother, also testified to facts and circumstances indicating that the defendant was of unsound mind. The defendant also called three physicians who qualified as experts on insanity, who testified, upon a hypothetical case based upon the evidence introduced in behalf of the defendant, that in their opinion the defendant was insane.
In rebuttal the State introduced twelve witnesses, the defendant’s neighbors, who had seen and talked with him often for more than a year before the homicide, and they all testified that there was nothing in the speech, conduct or appearance of the defendant that indicated any symptoms of insanity as far as they could observe.
The indictment is in all respects sufficient, both in form and substance, and such as has been often approved by this court. It is unnecessary to set it out at length in this statement.
I. Addressing ourselves to the assignments of errors urged'for the reversal of this judgment, the first proposition of the defendant is that the criminal court erred in calling Judge Casteel, the judge of the criminal court of Buchanan county, to try this cause, because Judge Wofford, the regular judge of the criminal court of Jackson county, was not legally disqualified.
By section 2594, Revised Statutes 18991, it is provided that “when any indictment or criminal prosecution shall be pending in any circuit court or criminal court, the judge of said court shall be deemed incom
We must decline to so hold.
In the ease of State v. Downs, 164 Mo. 471, the regular judge of the court being disqualified to try the case, an attorney possessing the qualifications of a judge of the circuit court was called upon, in writing, as a special judge to try the cause, this agreement having been made by the prosecuting attorney and counsel for the defendant. The special judge was selected, presided at the trial, and after conviction, the point was made by the defendant that the special judge was without authority of law to act as judge in the case. In answer to that contention this court said: “Was it competent for the attorneys of the defendant to agree upon the special judge ? ' The record contains the written agreement of the defendant by his counsel. There is a general concurrence of authority that, subject to the rule that an attorney cannot compromise his client’s case, any agreement or stipulation which appears in the progress of a cause to be necessary or expedient for the advancement of the client’s interests, may be made for his client by an attorney. In Ohlquest v. Farwell, 71 Iowa 233, the Supreme Court of Iowa said: ‘The choice of proceedings, the manner of trial, and the like, are all within the sphere of his general authority, and, as to these matters, his client is bound by his action.’ Especially is it true when such stipulations are entered into in open court. If this were not true, the most hurtful consequences must often ensue. We think it was competent for the counsel for the defendant to make this stipulation in behalf of the defendant, and that he is bound thereby.”
The right of a change of venue is a privilege accorded to the defendant alone in a criminal prosecution. The question before us is not whether the defendant’s application was in strict conformity to the statute made for his benefit, nor whether the criminal court might
H. It is next asserted that the court erred in overruling the defendant’s plea in abatement and motion to quash the indictment. As already seen, this plea and motion were based solely upon an irregularity in the selection of the grand jury. It appears in the record that the grand jury which returned the indictment in
In State v. Welch, 33 Mo. 33, the same point was ruled in the same way. In State v. Holcomb, 86 Mo. l. c. 376, Judge Black, speaking for this court, said: ‘ ‘ Challenge to the array, or to any one of the grand jurors, is no longer allowed, except on the ground that the juror is the prosecutor or complainant, or a witness on the part of the prosecution. [R. S. 1879, secs. 1772, 1773.] ” In that case, as in this, it appeared that “the plea does not claim that the jurors, or any of them, were objectionable for these, or, indeed, for any reason,” and the court ruled that “it would be a mere idle ceremony to sustain the plea, when the defendant makes and has no valid ground for a challenge.” To the same effect is State v. Connell, 49 Mo. 287.
On no subject has our statutory law remained unchanged longer than this, and the decisions have been uniform. In his plea in this case, the defendant merely complains of the manner of impaneling a grand jury which had been summoned and sworn and was in session when he shot his wife. In the nature of things he could not have been present to challenge the array or any juror before the panel was sworn. But if he had been present the objections embodied in his plea in abatement and motion to quash would have availed him
III. One, if not the most important, contention of the defendant, is that the circuit court erred in refusing to grant him continuance on his motion and affidavit in that behalf. The said affidavit was made by W. C. Reynolds, a member of the bar and one of . defendant’s counsel. The defendant himself made no affidavit.
The granting or refusal of an application for continuance, it has been uniformly held in this State, is a matter addressed to the wise discretion of the trial court, and while it is reviewable, it must appear to have been unwisely and oppressively refused before this court will interfere with the judgment of the circuit or trial court. Various witnesses are named in the affidavit whose absence was relied upon as a ground for the continuance. No subpoena had been issued onbehalf of the defendant upon his application, or upon that of his counsel prior to the 18th day of October, 1905, the cause having been set down for hearing on the 16th of October. As to the witness Lillie Thompson, the ap>plication is clearly insufficient. The affidavit does not disclose when the defendant’s counsel or defendant learned that the said Lillie Thompson would testify to the facts set forth in the affidavit. She was a resident of Kansas City and the defendant and his counsel were advised that this cause was set down for October 16th, 1905, three months prior to that date. The issuance of a subpoena two days after the cause was set for trial was no compliance whatever with the statute and showed no diligence to get her testimony. As to the witness House, the affidavit discloses that he is a traveling showman, moving from place to place over the country, and when last heard from was in Louisville, Kentucky. It is true the affidavit states that the said House would be in Louisville for ninety days, but the court was not informed how the affiant learned that House
It is also alleged that John Parkerson will testify that he has been acquainted with defendant for thirty years, and knew him when he lived in Lawrence, Kansas, and that Parkerson will testify that about twenty-five years ago, the defendant had a severe case of typhoid fever and that after his convalescence, Parker-son had frequent opportunities of observing the conduct of the defendant, and that the defendant had spells of melancholia, and would talk incoherently. Hpon what information the affiant made these statements that Parkerson would so testify, the criminal court was not informed, nor are we. It is further averred that Parkerson is now located at Lawrence, but the court was not informed what assurance affiant had that Parkerson could be found and his deposition taken in Lawrence on any given day. It was not averred that he had a permanent residence there, but it was stated in .the affidavit that he was a railroad man. We think the showing as to this witness was insufficient and falls clearly within the rulings in State v. Temple, 194 Mo. l. c. 251, and State v. Kindred, 148 Mo. l. c. 281.
C. D. Atkinson is also named as another witness who would testify that five years previous to the date of the trial, he was a fireman on the Rock Island rail
David McGraw is also named as a material witness for the defendant, and it is stated that he now resides in Denver, Colorado, and would testify that in 1901, the defendant was an engineer on a railroad train running out of Denver, and his condition was such that it was necessary to remove defendant from the train to the hospital, and that McGraw would testify that defendant’s conduct was that of an insane man and his appearance was such. The criminal court was not informed how affiant learned that McGraw would so testify, nor what reason affiant had to believe -that McGraw would
As to the witness George Moore, the affidavit shows that he lived at Lowry City, Missouri, and within the reach of a subpoena from the criminal court of Jackson county. And while the affidavit does show that affiant did not learn of the name and address of this witness until a few days prior to the 16th of October, the day on which this case was set for trial, that was no excuse for failing to send a subpoena to St. Clair county, which could have been reached readily on two lines of railway in one day, and there was ample time to have served the witness, or to have been a non est return. In this connection, we are reminded of the ruling of this court in State v. Worrell, 25 Mo. l. c. 256, in which it was said: “Even if the circuit court may have seemingly exercised its discretion without proper caution at first (which we do not pretend to say was the case here), yet when the whole case is presented before this court, and the absent witness, from what is alleged in the affidavit, may be supposed not to be able to change the result, if produced and present, and indeed ought not to change the result, there can be no injury done to the defendant by ruling him to trial, and in such cases this court will not reverse.” So in this case, if the defendant had procured the depositions of the several witnesses as indicated in an affidavit, they would have been merely cumulative to the testimony produced on the trial in behalf of the defendant. It appears from the evidence that the defendant had resided in, this State at Kansas City, Lowry City, Harrisonville and St. Louis, and had been engaged in business at said places, and if he had exibited such evidence of aliena
As to the absence of other testimony to show that Cora Freeman, an aunt of the defendant’s on the mother’s side, had been confined in an insane asylum, and that Enoch Logan, an uncle of the defendant was also insane, those facts were disclosed by the testimony
Upon a careful review and analysis of this affidavit for continuancé and the fact that no subpoenas were issued, we are of the opinion that the criminal court cannot be said to have unwisely and oppressively exercised its discretion in denying the continuance.
IV. It is insisted also that the court erred in refusing to enter and order a trial before said court and a jury of the question of the defendant’s sanity on the day the cause was set for trial.
In State v. Church, 199 Mo. l. c. 626, this identical question came before this court.' In that case, the defendant, by his attorney, filed his application alleging that the defendant was then insane and had become insane since the filing of the information and the commission of the offense, and by reason thereof was incompetent and incapable of rendering any assistance to his counsel in the conduct of the trial, and prayed the court to order a jury to decide the question as to his sanity, as provided by section 2603, Revised Statutes 1899. The court in that case heard evidence, which conclusively negatived the assertion that the defendant had become insane after the filing of the information, and the court overruled the motion and the defendant excepted, and thereupon the defendant’s counsel filed another motion for an inquisition as to the sanity of the defendant and that a jury be summoned for that purpose, but did not ask that it be held in accordance with section 2603, supra. This motion also was overruled.
It is a familiar rule of construction that a statute
In this case the counsel contented themselves with filing a motion in the nature of a challenge of the whole array, and did not ask the privilege of examining the individual jurors to see if any of them had become disqualified, nor did they object and save any exceptions because the court did not do this for them. We think it is too late now to raise that question in this court. There is nothing to show that any of the jurors either saw or read the article of which defendant complains. While we approve the ruling of the learned judge of the criminal court in the Hottman case, we are not to be understood as requiring a trial court to make objections for a defendant and his counsel, which they do not see fit to make for themselves.
VI. Instruction numbered 5' by the court is also challenged as erroneous. That portion of the instruction which is assailed, is as follows: “If you find that the defendant was insane, and irresponsible from any disease or disorder of the mind as explained in these instructions, when he committed the homicide, then you will find him not guilty; but if you find at the time of the shooting, he was not insane, but responsible for his acts, as explained in these instructions, and that he committed the crime as charged, then you will find him guilty, even though you may believe and find from the evidence that he has become insane since the homicide and that he- is now insane. ”
This instruction in our opinion is a correct state
VII. Another ground of error has been assigned in the reply brief filed by the defendant’s attorney since the argument and submission of the cause. It is now asserted that instruction number seven given by the court was erroneous. That instruction was as follows : “The testimony given by the experts and physicians, who testified in this case, is to be taken and considered by the jury like the evidence of other witnesses who testify in the case; and the opinions on questions of insanity which have been given by medical experts, are proper testimony before you, but are subject to 'the same rules of credit or discredit as the testimony of other witnesses, and are not conclusive on the jury. Those opinions neither establish nor tend to establish the' truth of the facts upon which they are based; whether the matters testified to by the witness in the case as facts are true or false, is to be determined by the jury alone, and you must also determine whether the facts and matters stated and submitted to the experts in the hypothetical questions are true in fact and have been proven in the case. ’ ’
This instruction has met the approval of this court on many occasions. It is the law that the opinions of the medical experts based upon facts do not establish, nor tend to establish the facts upon which they are based. Whether the matters testified to by the witnesses as facts are true or false is to be determined by the jury alone. It is self-evident that the opinion .of the experts upon the hypothetical facts submitted to them did not and could not in the very nature of things establish the facts upon which that opinion was based.
YIII. The defendant finally complains that the court permitted the State in rebuttal to prove the conduct and statements of the defendant at the time of the homicide and prior thereto, over defendant’s objection. We have examined all these items of evidence, and are of the opinion that it was clearly competent for the State to prove these matters to rebut the issue of insanity, which was tendered by the defendant. As to the specific fact that some of said evidence was not in rebuttal, but a part of the State’s case in chief, it is sufficient to say that the order in which the testimony was to be admitted was a matter largely within the discretion of the court and reversible error cannot be assigned upon that ground. [State v. Thornhill, 177 Mo. 691.]
In view of the serious consequences to the defendant, we have carefully gone through each and every one of these assignments of error and given them our most careful consideration, and in our opinion there was no reversible error committed by the criminal court in the trial of the cause. That the defendant was guilty of a cruel, unprovoked and deliberate murder, unless he was insane, there is not the slightest shadow of doubt in the record. Whether he was insane, and therefore not criminally responsible for his conduct in shooting to death his unoffending wife, was a question of fact for the jury, which tried the case. That issue was submitted to the jury upon instructions which were eminently fair to the defendant, and which have time and