| Mo. | Oct 15, 1884
Lead Opinion
The defendant was indicted for the murder of one "Win. O. Deck by shooting him with a pistol. Ilis only plea was self-defense, and there was evidence which fully supported that plea, as well as evidence of a contrary effect. Tried, he was convicted of murder in the second degree and his punishment assessed at forty years imprisonment in the penitentiary.
Three grounds are urged for a reversal of the judgment:
First — Overruling defendant’s challenge for cause of certain members of the panel of forty from which the selection of jurors was made ; one of such panel being one of the jurors who tried the issue joined.
Second — The giving of the eighth instruction on behalf of the State.
Third — Giving the sixth instruction for the State.
These grounds will be considered in their order :
I. Dillmer, one of the panel of forty, asked on his-voir dire if he had formed or expressed an opinion as to the guilt or innocence of the accused answered “ that he had formed such opinion from reading the evidence as published
Our statute is specific in its prohibitions that no accused party shall be required to make peremptory challenges until a panel of competent jurors is obtained. R. S., § 1,903; State v. Davis, 66 Mo. 684" court="Mo." date_filed="1877-10-15" href="https://app.midpage.ai/document/state-v-davis-8005847?utm_source=webapp" opinion_id="8005847">66 Mo. 684.
It is quite clear this statutory right of the defendant was denied him, so far as concerns those who “ had i’ead the evidence taken before the coroner.” And Wells, one of these, was afterwards sworn on the jury that tried the cause. Section 1,897, R. S., provides “ it shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue or any material fact to be tried; 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.” 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 rumor or newspaper reports, and even the exception has no operative effect if they have been such as to prejudice or bias his mind. There can be no question, therefore, as to the absolute incompetency of those persons
It may be fairly assumed that the four persons mentioned — Wells, Cabby, Hargrave and Terrell — had “read the testimony taken before the coroner,” while that testimony was unpublished and in manuscript, and with equal fairness it may be assumed that Dillmer had read the same evidence after it had become readily readable in consequence of being published in a printed form. Was not Dillmer also disqualified in consequence of having formed an opinion founded on such a basis ? The answer to this question turns upon another one : What are newspaper reports ? I take it that if in interpreting these words we are to obey the statute in such cases made and provided; i. e., that “ words and •phrases shall be taken in their plain and ordinary or usual sense ” (R. S'., § 3126), that we cannot be long at a loss for their true meaning. “ Rumor and newspaper reports,” if aa-c •apply the maxim noscitur a sociis, were intended to occupy in point of evidential force the same footing. If we look to the standards of our language rumor is found to be : “Flying or popular report; a current story passing from one qierson to another without any known authority for the truth of it.” Webster’s Dictionary. If next we turn to •“ report,” we find it one of the synonyms of “rumor,” another “ hearsay,” another “ storyso that when Ave couple the word “ newspaper” Avitk the word “ reports ” it would seem impossible to doubt the legislative meaning as being ■simply this : A rumor or current story printed in a newspaper. And the legislature must not be supposed to be ■either unmindful or ignorant of the meaning and of the slight value placed by the judiciary of this State on newspaper statements or reports. Speaking on this point McBride, J., in Baldwin’s Case, 12 Mo, 228, said: “ The information upon which the juror predicated his opinion
In the recent case of State v. Stein, 79 Mo. 330" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/state-v-stein-8007567?utm_source=webapp" opinion_id="8007567">79 Mo. 330, one sworn on his voir dire, stated he had formed his opinion “ from what purported to be the testimony of the witnesses before the coroner’s jury,” and afterwards, with others in like situation, he was placed on the panel and this being assigned for error, this court, speaking through Norton, J., said : “ It is unnecessary to note more particularly the action of the court in overruling defendant’s challenge for cause to four jurors, on the ground that from rumor and newspaper reports, they had formed decided opinions, further than to say that the rule in reference to the competency of jurors is laid down in the case of State v. Walton, 74 Mo. 270" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/state-v-walton-8006888?utm_source=webapp" opinion_id="8006888">74 Mo. 270, and that, in passing upon the competency of.
There can be no doubt, therefore, of the absolute disqualification of those who had read the evidence officially ttaken in the cause, whether as written down by the coro
II. Relative to the sixth, instruction, given at the instance of the State, it is scarcely necessary to say more than this, that it is confused and unintelligible, and, therefore, well calculated to mislead the jury, and is, moreover, erroneous, if it declares the doctrine, which it seems to do, that Deck was authorized and justified in striking defendant with a club, notwithstanding defendant had done no act to prevent Deck putting up his fence, and that there was no-self-defense in resisting such a dangerous blow.
III. Of the eighth instruction given on behalf of the State, it may be said that if, by the word “ difficulty ” is-meant a mere altercation, wrangle, dispute or controversy confined to words and springing up on the spur of the moment, it does not state the law. Threats made by the-defendant of interfering with the building of the fence or against the deceased, unless some overt act were done with-a malicious and felonious purpose in view, wo'uld not take from the defendant the right of self-defense if the deceased first struck him with a club. Daniel v. State, 10 Lea 261. In that case Deaderick, C. J., observed : “The charge in this case holds in effect that a person who may, by improper conduct, provoke an assault, cannot be allowed to rely on the-plea of self-defense, nor can he rely upon such defense if he willingly engage in a fight, even if first assaulted and)
If, however, provocation is sought for, if the party killed is purposely provoked or assaulted in order to afford an opportunity to slay him, and then when goaded to madness he makes an assault and is thereupon killed, then the rule announced in State v. Hays, 23 Mo. 287" court="Mo." date_filed="1856-03-15" href="https://app.midpage.ai/document/state-v-hays-7999858?utm_source=webapp" opinion_id="7999858">23 Mo. 287, applies. In that case the jury were properly told that if “Hays intentionally brought on the difficulty for the purpose of killing Bi'Kwn,” he was guilty of murder. The fifth instruction for the State recognizes this principle, which is conspicuously absent from the one under discussion. Were it the rule, as announced in the eighth instruction, then a person who, without any ulterior or malicious purpose should, on the street, begin some sudden wrangle, altercation or dispute, or be the aggressor in some casual combat without weapons or malicious purpose, the party assailed either with tongue or fist, could draw a deadly weapon and take his life, and he be defenseless before his adversary, or a murderer if he successfully resisted the murderous assault. Such a doctrine, in my opinion, is consistent with neither reason, humanity or law. And it is only when the wordy quarrel or the actual non-felonious combat is provoked by the commeneer or aggressor in order to afford opportunity for him to kill his adversary, that the right of self-defense ceases, and the authority of Hays’ case can successfully be invoked. This seems to be the view entertained in State v. Christian, 66 Mo. 138" court="Mo." date_filed="1877-10-15" href="https://app.midpage.ai/document/state-v-christian-8005776?utm_source=webapp" opinion_id="8005776">66 Mo. 138, for after citing the cases of State v. Starr, 38 Mo. 270" court="Mo." date_filed="1866-03-15" href="https://app.midpage.ai/document/state-v-starr-8001939?utm_source=webapp" opinion_id="8001939">38 Mo. 270; State v. Linney, 52 Mo. 40" court="Mo." date_filed="1873-02-15" href="https://app.midpage.ai/document/state-v-linney-8003914?utm_source=webapp" opinion_id="8003914">52 Mo. 40; State v. Underwood, 57 Mo. 40" court="Mo." date_filed="1874-03-15" href="https://app.midpage.ai/document/state-v-underwood-8004576?utm_source=webapp" opinion_id="8004576">57 Mo. 40; and quoting from them in reference to a party who “ seeks and brings on a difficulty,” Norton, J., says: “ Where the combat is the immediate conse
The result reasonably deducible from the authorities cited and quoted from seems to be this, that while you may not bring on a combat in order to wreak your vengeance on your enemy, and then shield yourself behind the pretext of self-defense, yet where the quarrel is sudden, no felonious intent entertained, no deadly weapon used by the accused at the outset, that there the right to defend his life against an assault with a deadly weapon still exists in his favor and is not abrogated by reason of the fact that he began the sudden quarrel.
Since writingthe above, I have found a case which bears adose analogy to the present one. The case arose in North Carolina, a state where adjudications on the subject of murder are imbued with all the stern rigor of the ancient common law. In the case refei’red to, the defendant was convicted of murder in the first degree. He had been stabbed by the deceased', but he had “ brought on the difficulty ” by striking the deceased a blow with his fist, when the deceased stabbed him, and ho thereupon stabbed and killed the deceased, but in circumstances which rendered it doubtful whether the act of the prisoner was the result of passion in consequence of being stabbed, or was necessary in self-defense, and Gaston, J., observed: “It was necessary that the. jury should, in the first place, ascertain whether the prisoner commenced the affray with a preconceived purpose to kill the deceased, or to do him great bodily harm. Eor if he did, then there was nothing in the subsequent occurrences of the transaction, which could free him from the guilt of murder. If the first assault was made with this purpose, the malice of that assault, notwithstanding the violence with which it was returned by the deceased, communicates its character to the last act of the prisoner. * * If, upon consideration of all the evidence, the jury came to the conclusion that the first assault of the prisoner was not of malice prepense, then
Eor the reasons heretofore given, the judgment should "be reversed and the cause remanded.
The judgment is reversed and the cause remanded on .account of the error mentioned in the first paragraph.
Dissenting Opinion
Dissenting. — Not being able to concur in the opinion of a majority of the court, and believing as I do that the rule which it establishes will render an efficient administration of the criminal law difficult, if not wholly impractical in mauy cases, and is not in accord with the current of authorities, it is but proper that I should give my reason for dissenting.
I understand the rule established by the opinion to be: That it'is a good cause for the peremptory challenge of a juror in a criminal case, if wdien examined on his voir dire, he states that he has read the evidence taken before a coroner or justice of the peace as reported in a newspaper, and has formed an opinion from such report, even though he decíales that if accepted as a juror he would be wholly uninfluenced by such opinion, and would be governed solely by the evidence, and even though the court required to pass upon his competency should be satisfied of his impartiality, and that when such a juror is accepted it will be reversible error, although the facts of the case fully and completely sustain the verdict.
In the march of progress and civilization the fact is not to be ignored that in every county of the commonwealth there are one or more newspapers, and that, as a rule, they
In treating of this question Judge Scott observed, in the case of the State v. Davis, 29 Mo. 391" court="Mo." date_filed="1860-01-15" href="https://app.midpage.ai/document/state-v-davis-8000734?utm_source=webapp" opinion_id="8000734">29 Mo. 391, “that the jurors, were examined on their voir dire and stated that they had formed an opinion from rumors, but it was not such as to bias; or prej udiee their minds. * * Such jurors have invariably been held competent, and the course of decision will not be-varied because complaisant men, in a long course of cross-examination by counsel, may give an answer somewhat favorable to those who may wish to exclude them. Such is the growing aversion to serving on j-uries, that unless the rule is adhered to it will be impossible to obtain competent jurors.” More than forty years ago, this court in passing upon the case of Baldwin v. The State, 12 Mo. 223" court="Mo." date_filed="1848-10-15" href="https://app.midpage.ai/document/baldwin-v-state-6612598?utm_source=webapp" opinion_id="6612598">12 Mo. 223, sustained the action of the circuit court in accepting as competent a
In the recent case of Reynolds v. United States, 98 U.S., 145" court="SCOTUS" date_filed="1879-01-18" href="https://app.midpage.ai/document/reynolds-v-united-states-89858?utm_source=webapp" opinion_id="89858">98 U. S., 145, it was observed: “ That in these days of newspaper-enterprise and universal education'every case of public interest is, almost as a matter of necessity, brought to the attention of intelligent people in the vicinity, and scarcely any one can he found among those best fitted for jurors who has not read or heard of it, and who has not some opinion in respect to its merits. It is clear, therefore, that upon the-trial of the issue of fact raised by a challenge for such cause, the court will be practically called upon to determine whether the nature and strength of the opinion formed are such in law as necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact — to be tried, so far as the facts are concerned, like-any other issue of that character- — -upon the evidence. The finding of the trial court on that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court than those which govern in the consideration of motions for new trials, because the verdict is against the evi
If, as the above authorities decide, the fact as to whether a juror who has formed an opinion from rumor or newspaper reports, and who states that such opinion would not bias his judgment, but that in the trial of the cause he would be governed solely by the evidence, is a competent juror is to be determined by the court in which the trial is had, and that the decision when made ought only to be disturbed on the same ground that would justify setting aside .a verdict on the ground that ifc was not supported by the evidence. Under this rule, before the action of the trial
This principle is ignored in the opinion of the court. Under the construction therein placed upon the statutes, whenever it appears that the opinion of the juror has been formed from reading a newspaper report of the evidence taken before the coroner, he is disqualified as a matter of lawT, although it be made abundantly to appear to the trial court, from the evidence of the juror, his character and standing, his demeanor while delivering his evidence, that the opinion so formed was not such as to affect his impartiality in the slightest degree. This, in my view, is subversive not only of the best interests of social order, but of the best interests of those criminally charged. One of the jurors said he had read the evidence taken before the coroner reported in a newspaper, and four others that they 'had read the evidence taken, without further qualification, and what I have here written, has been on the hypothesis-that all of them referred to the evidence as reported in the newspaper. An opinion formed from such newspaper reports stands upon the same footing, under our statute (even under the maxim noscitur a sociis) as one formed from rumor-
The construction placed upon the statute would put it in the power of a person criminally charged to disqualify ■ every person in a county from serving on a jury by simply having a newspaper to publish a report of the evidence taken before a coroner or a justice of the peace ; place the paper in the hands of all subject to jury duty who could read, and have it read to those who could not read, and when the cause is called for trial, and the sheriff is required to summon a jury, he brings in platoon after platoon of an hundred each, till the whole population of an entire county •subject to jury duty has been compelled to abandon their various vocations and pursuits and appear before the court to be peremptorily challenged and sent home on the ground that they had formed an opinion from a newspaper report •of the evidence taken before a committing magistrate or ■coroner, the prisoner thus escaping a trial and ultimately obtaining his discharge because a jury cannot be found in the county competent to try him. Just in proportion to the enormity of a crime, committed under circumstances the most revolting, shocking the community and the moral •sense of mankind, are the probabilities increased of bringing about such a state of things. In my view of it, it was ■such a condition of things that the legislature was guarding ■against and intended to prevent when it was declared by •statute that an opinion formed from newspaper reports •should be no cause for challenging a juror when it appeared'to the trial court that the opinion would not bias his judgment nor influence him in the trial of the cause.