69 Mo. 485 | Mo. | 1879
Lead Opinion
The defendant was indicted at the October term, 1877, of the circuit court of "Washington county, for murder in the first degree, in killing Jules Polite. He was put upon his trial at the October term, 1878, of said court, and found guilty of the crime as charged, and sentenced to be hanged. From this judgment defendant has appealed, and seeks a reversal thereof, on the alleged errors of the circuit court in refusing to discharge, on defendant’s motion, the panel of jurors summoned in the cause, and in giving and refusing instructions.
The record before us shows that on the 14th day of October, 1878, the sheriff returned into court a panel of forty jurors, from which to select a jury / *’ ’ , of twelve to try the cause, which jurors were sworn to answer questions touching their qualifications, and were found qualified by the court, and a copy of said panel furnished the defendant; that, on the following day, defendant filed his motion, accompanied by affidavits, challenging the array of said jurors, for the reason that they had been summoned and brought into court by persons who were neither sheriff’s deputies nor sworn officers.
It does not appear, Avhen the motion was heard, that any evidence was offered tending to show either bias or prejudice on the part of the officer charged with the execution of the venire; but we are asked, as the court below was, to find that such bias or prejudice existed on the part of the sheriff', from the' simple fact that he had executed the venire by summoning the same forty men who had been previously discharged, on the sole ground that they had not been summoned by any person authorized bj’ law. From the mere fact of summoning forty men who had been discharged for the reason that they had not been brought into court by auy legally authorized person, we are not justified in presuming or inferring that his conduct was prompted by bias or prejudice against the accused, especially so in the face of the following admissions contained in the record: That “ there was no objection made against any of said jurors, either by the prosecuting attorney or defendant, ou the ground of tffeir not being qualified.” The defendant had accorded to him the full benefit of having had a jury summoned by a sworn officer, and the presumption is to be indulged that he discharged the duty imposed fairly and impartially till the contrary should be made to appear affirmatively. This not having been done, the court properly overruled the challenge to the array.
It is also insisted that the court erred in giving the first instruction on the part of the State, and refusing the first and second asked by defendant. The first instruction given for the State relates to murder in the first degree, and informs the.jury what they must believe from the evidence before they can find defendant guilty of murder in that degree. It is not contended by counsel that the instruction does not properly define the offense, but it is insisted that there was no evidence in the case to support it. In the light of the evidence this objection is not well taken. The evidence on the part of the State shows that the difficulty which resulted in the death of deceased, occurred at the house of defendant’s father, where a dance was going on; that deceased came to the dance between ten and twelve o’clock, and took a place in a set which was being formed; that defendant also took a place in the same set, to which deceased objected, on the ground that some other person- was entitled to the place, whereupon Antoine -Degonia, a brother of defendant, and one of the musicians, remarked to deceased not to “ get his hack up;” that deceased replied that the place to fight was outside, and went out of the door on one side of the house into the yard, and Antoine went through the window on the other
There is nothing in the objection that one Sehonboour, during the recess of the court, was in the room where the jury was kept by a deputy of the sheriff', inasmuch as it appears that nothing whatever was said in relation to the cause being tried. Nor is there anything in the objection that the officer having them in charge furnished them with cigars. State v. Upton, 20 Mo. 397; State v. Carlisle, 57 Mo. 102; Collier v. State, 20 Ark. 36; State v. Cucuel, 2 Vroom. (N. J.) 249.
It is also alleged as error that the prosecuting attorney, in his closing argument, commented on the fact that defendatit had not called, as witnesses his two brothers, who were iudieted as accessories. It does not appear that this conduct of the prosecuting attorney was made a ground for a new trial in the motion for new trial: but it does appear that the attention of the court being called to it, the attorney was promptly rebuked by the court and commanded to keep within the record. This under the principle announced in the case of the State v. Lee, 66 Mo. 165, cured the error, if any.
We find, upon a careful examination of the instructions, that they fully and fairly declared the law governing
Judgment affirmed, in which all concur,
Affirmed.
Dissenting Opinion
Dissenting. — I think that the court erred in-overruling the defendant’s objection to the-panel of petit jurors summoned by the sheriff, after having allowed his challenge to the same panel because the persons who summoned them did not take the oath prescribed by law. Robinson and Relf, who selected and summoned them in the first instance, were not deputies or sworn officers. Rut if they had been, the law requires the sheriff and his deputies to be sworn in open court before any jury shall be impaneled, that in summoning jurors tobe returned to the court, they, and each of them have used, and will use the utmost diligence to summon and return, as jurors, sober and judicious persons of good reputation, and qualified by the laws-of this State to serve as jurors; and that they have not summoned, or returned, and will not summon or return any person who, in their judgment, will be influenced in determining any of the matters which shall come before him as a juror, by hatoed, malice or ill-will, fear, favor or affection, or by any partiality whatever.
The objection in the first instance was, that this oath had not-been taken by the persons who selected and summoned the jury. The objection was to the panel, not to those who selected it, and was made probably under an