83 Mo. 589 | Mo. | 1884
Lead Opinion
The defendant was indicted in the circuit court of McDonald county at the February term, 1884, for the murder of one A. W. Chenowith, and the cause was taken to Newton county by change of venue. Át the August term, 1884, he was tried and found guilty of murder in the first degree, and from the judgment has appealed to this courb. He made an application for a continuance, based upon the absence of witnesses whose testimony he deemed material, and the prosecuting attorney, agreeing that the defendant’s affidavit, wherein it stated what the witnesses would testify to, might be read as their testimony, tlie application was overruled, and it is sufficient to say, as to any alleged error committed by the court in that ruling that it is not one of the grounds relied upon in the motion for a new trial.
In his application for a change of venue, he stated that the inhabitants of the counties of McDonald and Newton were so prejudiced against him, that he could not have a. fair trial in either of those counties. For what reason the court sent the cause to Newton does not appear, but no exceptions were taken to the order sending it to Newton, nor was the court’s attention called to this alleged error at any stage of the proceedings, and it is too late to raise the question in this court.
Another alleged error is, that when the indictment was returned to the court, it does not appear from the record that any of the grand jury were present except their foreman. The statute, section 1797, provides that: “ Indictments found and presentments made by a grand jury, shall be presented by their foreman, in their presence to the court.” The record entry is as follows: “ And afterwards, to-wit: on the 6th day of February, 1884, * * * the grand jury heretofore em
The defendant’s application for a continuance was based upon the absence of witnesses, among others named in the affidavit, of one Stevens. That portion of the affidavit containing a statement of what he would testify to, was read by defendant to the jury as his testimony, • and when the state, at the proper stage of the trial, called said Stevens as a witness, the defendant asked the court to exclude the statement read by him from his affidavit as the testimony of said Stevens, alleging that he fully believed that Stevens would so testify, but, after Stevens’ appearance in court had learned that the statement was not what he would testify to. The court overruled the motion and Stevens’ testimony was different from, and contradictory of, that which it was alleged in defendant’s affidavit it would be. The action of, the coxirt in that regard is complained of. To allow such practice, as that insisted upon by defendant’s counsel, would open a door to intolerable abuses in criminal trials. With the consent of thé state he introduced, as the evidence of a witness, what he swore that the witness would testify to, if present. The testimony was material, and when the state called that very witness to the stand defendant asked to withdraw his testimony. He might, upon equally as good grounds, have asked to withdraw from the jury the testimony of any other witnesses, whom, he learned would be contradicted by witnesses introduced by the state. He may, if he desires, recall a
When the defendant, in a criminal trial, reads, as the evidence of an absent witness, his statement of what the evidence of that witness will be, the state may contradict his’testimony, or impeach the witness, as if he were present. Sec. 1886, R. S. There is, therefore, no reason why that person himself should be excluded as a witness, when offered by the state. The state would have the right to introduce any person who had testified for the accused, to contradict himself if such a culprit could be found among the defendant’s witnesses, and no reason occurs to us for holding otherwise, in regard to one whose testimony, as an absent witness, has been introduced.
Nor did the court err in excluding testimony of threats made against the deceased by another party, one of the state’s witnesses, who, also, had a grudge against deceased. State v. Davis, 77 N. C. 488 ; State v. Jones, 80 N. C. 415. In the cases above cited, the defendants offered to prove, not to impeach a witness, but as testimony in chief, that another person had malice against the accused and had threatened his life. The court excluded it as irrelevant. In the case at bar, one Matney, a witness for the state, was asked by defendant’s counsel, on cross-examination, if he had not threatened the life of Chenowith, and he answered that he had not; and defendant offered to prove that he had, but the evidence was excluded. Mr. Greenleaf in his work on Evidence, 1 vol., sec. 449, says: “It is a well-settled rule, that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, thereby to discredit his testimony.” It would, of course, have been competent to prove that the witness killed Chenowith, but, as was observed by the Supreme Court of North Carolina in the
With the motion for a new trial appears the affidavit of Jno. McBrian to the effect that one of the jurors who tried the cause, said to affiant: “ They had better hang the rascal (meaning defendant) than to be delaying time over him,” and “that he had lost or would lose fifty dollars on account of it.” There is no indorsement on the affidavit, nor any thing in the record showing that it was ever filed in the cause, or that the attention of the trial court was ever called to it; and the eleventh ground relied upon for a new trial, is the only one which relates to that subject, and that is as follows: “The court failed to admonish the jury not to converse among themselves on any subject connected with the trial, or to form or express an opinion thereon, until the cause should be finally submitted to them, and the jury did in fact violate their duty in that regard, and did talk about the case, and some of them made up an opinion on the case before it was finally submitted to them.” This objection is based upon misconduct of the jury, after the trial commenced, while the affidavit relates to what occurred before.
On their voir dire, the panel of forty were asked the following questions: “Do you, or either of you belong to any organization or association having for its purpose the prosecution of criminal cases, or the aid of courts or officers to enforce the criminal laws in criminal cases, including this one?” 2nd, “Have you or either of you
In some of the states it seems the questions to be propounded to jurors are prescribed by statute, and it is-there held that it is within the discretion of the judge, whether other questions than those prescribed by the statute shall be propounded. Com. v. Gee, 6 Cushing 174; Pierce v. State, 13 N. H. 536. In the latter case it-was determined that other than the statutory questions might be asked. Our statute does not prescribe the questions to be propounded to jurors. It declares who shall be incompetent, as in section 1893, a member of the grand jury by which the indictment was found; by 1894, persons akin to the prosecutor or defendant, and, when the indictment alleges an offence against the person, or property of another, the injured party, or any one akin to him; by section 1895, persons whose opinions preclude them from finding a defendant guilty of a capital offence, and by sections 1896 and 1897, witnesses and persons who have formed or expressed opinions as to the guilt of the accused. The statute gives the accused in a capital case, the right to challenge peremptorily, twenty of the panel. The examination of such persons on their voir dire, is necessary, not only to ascertain who are competent jurors, but-, also, to enable the accused to exercise judiciously his right of peremptory challenge.
One may not be incompetent as a juror, and yet may stand in such relations to the prosecutor, or the cause? as, if known to the accused, would be deemed a good reason for peremptorily challenging him. He is entitled to an
Mr. Wharton, in his Criminal Practice, section 670, says: “Challenges to the polls for favor take place when, though the juror is not so evidently partial as to amount to a principal challenge, there are reasonable grounds to suspect that he will act under some undue influence or prejudice, and when these grounds involve disputed questions of fact.” Judge Gfaston, in the State v. Benton, 2 Dev. & B. 212, said: “An opinion imperfectly formed * * * does not constitute a cause of principal challenge, although it may be urged by way of challenge to the favor which is to be allowed or disallowed as the triers may find the fact of favor or indifi'erency.” So in Wisconsin, New York and other states, the distinction between challenge for principal cause, and challenge for favor is retained in their practice, and whether the facts exist upon which the party would make a challenge for favor, is a question to be tried by triers, designated by the law. The distinction between challenges for principal cause and challenges for favor is clearly stated as follows: “In the former case, the facts being ascertained, the law presumes such a bias or prejudice as absolutely to disqualify the person to act as a juror in the particular case. * * * The latter involves an issue of fact, which is to be found by triers duly appointed, or by the court,
In this state we have no technical challenges for favor. If one summoned as a juror does not fall within any of the classes of persons declared incompetent by the statute, the accused has no challenge but the peremptory challenges, and under this, he must make his challenge for favor. Hence the importance and propriety of allowing a liberal latitude in the examination of the panel, on their voir dire. Mr. Wharton, seo. 676-, says : “ The mere fact of a juror purging himself from disqualification on his voir dire-, does not preclude the party questioning him from challenging him for favor, and producing evidence before the court or the triers as the practice may be, to disprove his testimony.” In Lavin v. People, 69 Ill. 303, the defendant was indicted for selling intoxicating spirits in violation of law, and to each juror he propounded the following questions: “First. Are you a member of a temperance society? Second. Are you connected with any society, or league, organized for the purpose of prosecuting a certain class of people, under what is called the new temperance law of the state; or have you ever contributed any funds for such a purpose?” The state objected, and the court sustained the objection. On appeal the Supreme Court said: “We are not, however, in this case, called upon to decide whether an affirmative answer to the questions propounded to the jurors would have been ground of challenge for cause. The questions were asked with a view to call out facts upon which to base a peremptory challenge, and for this purpose they were proper, and should have been answered.” Again the court observed: “Itis the policy of our laws to afford each and every person who may have a cause for trial in our courts, a fair and impartial trial. This can only be done by having the mind of each juror .who sits to pass judgment upon the life, liberty or rights of a suitor entirely free from bias or prejudice. In order to determine whether
In the case of People v. Bodine, 1 Denio 308, Judge Beardsley said: “A fixed and absolute opinion may be necessary to sustain a challenge for principal cause, but not so where the challenge is for favor. In the first species of challenge the result is a conclusion of law upon ascertained facts, but in the latter, the conclusion is a matter of fact, tobe found by the triers.” Again: “It is competent to prove that the juror challenged and the opposite party are in habits of great intimacy; that they are members of the same society, partners in business, or the like. The feelings of the juror may, also, be shown, and that whether they amount to positive partiality or ill-will, or not, as his views and opinions, also, maybe, whether mature, absolute or hypothetical. Indeed, any and every fact or circumstance from which bias, partiality or prejudice may justly be inferred, although very weak in degree, is admissible on this issue.” See, People v. Reges, 5 Cal. 347; Kelley’s Criminal Law and Practice, sec. 332.
Innumerable authorities might be cited to show that the ruling of the circuit court, refusing to permit the jurors to answer the questions propounded was erroneous, but we think that the above are sufficient. This right, however, is to be limited by the purpose for which it is given. Jurors are not bound to answer impertinent or irrelevant questions, or those to which an answer may tend to their disgrace or infamy, or self-accusation of crime.
The instructions given by the court very fairly, fully and clearly declared the law applicable to the case, in all its phases, except that wherein it defined the word
The deceased was waylaid and assassinated. There is no question, on the evidence, that he was murdered in cold blood, and the only question was, who committed the deed, and the error, in the definition of the term “deliberately” could not, therefore, possibly have prejudiced defendant. State v. Talbott, 73 Mo. 347. For refusing to permit the jurors to answer the questions propounded to them by the accused, the judgment is reversed and the cause remanded.
Dissenting Opinion
Dissenting. — When a party is brought to trial on a charge for murder in the first degree he is entitled under our statute to challenge a juror for cause, and in order to ascertain whether a juror is subject to such challenge, an examination (called the voir dire examination), is had before the court, and according to my view of the law, in conducting such an examination, only such questions can be propounded to the juror, which if answered in the affirmative would tend to establish the existence of such cause as would give the defendant a right to challenge him as incompetent. Tested by this rule the questions propounded in this case were not proper ones, for if the juror had answered and said that he belonged to an organization, the object of which was to aid in the enforcement of the criminal law, including the case then about to be tried, it would have afforded no ground of challenge for cause, it being the duty of every good citizen to render such whether he belonged to such organization or not.
The mode of proceeding by challenge for favor referred to in the opinion of the court has no existence in this state, and in lieu of that method, in a case like the present, the court is required by means of the voir dire examination to procure forty qualified jurors, a list of