168 Mo. 122 | Mo. | 1902
— On a former occasion, at the present term of this court, an opinion was delivered which affirmed the judgment of the trial court, and this because the bill of exceptions was not properly authenticated, and so we could not examine the errors alleged to have occurred during the progress of the trial. Since then, however, such action of the trial court has been taken that the record has been so amended nunc pro tunc, as properly to authenticate the bill, and so we proceed to look into its now validated contents, and in connection therewith, such portions of the record proper as are pertinent to such investigation. The charge is murder in the first degree, and that charge supported by the verdict. The person slain was John R. Martin and his death resulted from defendant shooting him dead with a pistol, while he stood before his slayer unarmed.
The indictment was found at the March term, 1901, of the Buchanan Criminal Court, which sits alone in the city of St. Joseph.
The controlling preliminary question in this ease is: In a trial which occurs in a criminal court sitting alone in a city of over 100,000 inhabitants, and which court has jurisdiction also over the county in which such city is situate, what is the requisite number of jurors where the trial is had on the charge here recorded, and where the crime is done in the county, but outside of the city limits ?
Section 2621, Revised Statutes 1899, relied on by defendant is as follows:
“In all criminal trials the State shall be entitled to the following number of peremptory challenges, viz.: In cases specified in the first clause of section 2619, eight .... except in all cities having a population of over one hundred thousand inhabitants the State shall be entitled to the follow*125 ing number of peremptory challenges, viz.: In cases specified in the first clause of said section, fifteen.” . ...
Section 2619 to which the section just quoted refers, makes provision in its first clause that “if the offense charged is punishable with death, or imprisonment in the penitentiary not less than for life,” the defendant is entitled to peremptorily challenge twenty jurors.
Section 2624 requires the prosecuting attorney to “first announce the challenges for the State,” and then the defendant “shall announce his challenges, and the remaining twelve or if there be more than twelve, the first twelve names remaining on the list unchallenged, shall be the jury to try the cause.”
It is undeniably clear that section 2621 provides that “in all criminal trials,” where the trial occurs in a city of over one hundred thousand inhabitants, the State is entitled, where death or imprisonment for life is the punishment, to fifteen peremptory challenges. This is the plain and unequivocal language of section 2621, and that plain language must be obeyed. It will not be permitted to add to that section words which would restrict its operation to cases where the crime teas committed within the city limits of such a city; for the statute says nothing of that sort. We can not, without usurping legislative functions, add to the statutory provisos, or increase the statutory exceptions. In other words, the right to fifteen peremptory challenges is given to the State whenever a case of murder in the first degree is tried in a city of over one hundred thousand inhabitants, no matter where the case may have arisen, or from whence it may have come by change of venue. It is the locus fori, and not the locus delicti that determines the number of the State’s peremptory challenges. Were this otherwise, we should witness in Kansas City, for instance, some denizen of McDonald county on trial for his life with only a panel of forty to select from, while a citizen of that municipality who had done murder on her streets, would have a list of forty-seven from which to make his pre
As the defendant properly saved his exceptions to the erroneous action of the court in denying his motion to quash the incomplete panel, and in denying his motion for a new trial based on such error, the judgment herein before entered, at the present term, affirming the judgment of the lower court, will be vacated and set aside, and the judgment rendered by the trial court will be reversed and the cause remanded
