11 Mo. App. 92 | Mo. Ct. App. | 1881
delivered the opinion of the court.
Defendant was indicted at the March term, 1875, of the St. Louis Criminal Court for the murder of Dora C. Broemser. He was convicted of murder in the first degree, and the judgment was reversed on appeal. Two mistrials were then had. At the October term, 1879, defendant pleaded guilty to murder in the second degree, and was sentenced to imprisonment in the penitentiary for twenty-five years. On appeal, this sentence was reversed and the cause remanded. At the May term, 1881, defendant was again convicted of murder in the first degree, and this appeal is from the judgment entered upon that conviction.
It appears from the evidence that on January 4, 1875, Dora C. Broemser was a married woman of respectability, living in St. Louis with her husband; that about eight o’clock on the evening of that day, defendant Kring appeared in the alley in the rear of the residence of Mrs. Broemser, and sent up word to her in the house that he wanted to see her. She sent back word that unless he went away she would send her husband down to him. He replied that she knew her husband was out of town, and that if she did not come down he would come up stairs. She then came to him in the alley, accompanied by her sister-in-law. Defendant then told Mrs. Broemser that he wanted her to marry him. She said that she had a husband and children, and could not do so. He said he must have an immediate answer. She told him she was afraid he would shoot her. He said he was not armed, and required her to say whether she would go with him. She said “ no,” and started to run. Kring then fired at her twice ; one shot struck her in the leg ; the second penetrated the back below the shoulder blade. The pistol showed that it had missed fire at the third chamber; and Mrs. Broemser states in her dying declaration that, as she was lying on the ground, he put the pistol to her mouth and drew the trigger, but the pistol missed fire. A few days
The defence was insanity. This defence was not established to the satisfaction of the jury.
We see no error in this. The grand jury which returned the bill was summoned from the body of the county, or political subdivision of the state, in which the offence was committed. The bill was returned to the St. Louis Criminal Court, the court in which defendant was tried. It is not pretended that at the time of the indictment and the time of the trial, this St. Louis Criminal Court had not jurisdiction over offences committed within the city of St. Louis, or that this offence was not committed within that city. We know of no principle of law which should lead us to declare that, because a territory lying outside of the district within which the offence was committed has, since the commission of the offence, been withdrawn from the jurisdiction of the St. Louis Criminal Court, therefore this indictment, good at the time, has become bad. But, if no ground exists for quashing the indictment, the cause is undoubtedly to be tried on the indictment, and by the court to which the indictment was returned, and which had then, ever since has had, and still, has, exclusive originál jurisdiction of the crime of murder committed, as in this case, within the corporate limits of the city of St. Louis, those limits not having been restricted in the meantime, and the place of the homicide having been, ever since the crea
In this we see no error, but rather a compliance with the direction of the supreme court. The theory of counsel
Formerly it was held in Missouri (The State v. Ross, 29 Mo. 32), that, where a conviction is had of murder in the second degree, on an indictment charging murder,in the first degree, if this be set aside the defendant cannot again be tried for murder in the first degree. A change introduced by section 23 of Article II. of the constitution of 1875, has abrogated this rule. On the oral argument something was said by counsel for defendant to the effect that, under the old rule, defendant could not be put on trial for murder in the first degree, and that he could not be affected by the change of the constitutional provision, the crime having been committed whilst the old constitution was in force. There is, however, nothing in this. The change is a change, not in crimes, but in criminal procedure, and such changes are not ex post facto. Gut v. The State, 9 Wall. 35; Cummings v. Missouri, 4 Wall. 326.
The act in regard to the St. Louis Criminal Court (Rev. Stats. 1508, 1509, sects. 16, 17, 18), provided that, in case of change of venue, the ca.use should be sent to the circuit court of St. Louis County; and that no change of venue should be granted to another county, but a special venire should be issued to summon a jury from St. Louis County outside of the city, if the affidavits set forth prejudice on the part of the inhabitants of the city. But, by section 1999 of the Revised Statutes, it was subsequently provided that the provisions of the criminal code applicable to the circuit court shall also be applicable to any court of record exercising criminal jurisdiction, in all cases where no other or different provision of law is made. Under the general provision of the criminal code (Rev. Stats., sect.
The record has been examined with care, and nothing has been discovered to warrant a reversal of the judgment. It is therefore affirmed.