*1 3B5 670-671). up (Hunter Candy Co., 307 Under them v. Mo. l. c. hold opinion is in with recited the conclusion conflict the evidence unnecessary for us conflicts the cases cited. to consider other claimed relator. quashed. All
The record concur. Cordy (2d) 1079. Naylor, Appellant. S. W.
The State v. July Two,
Division 1931. *2 Rogers Major for appellant.
Daniel Hamuel 0. C. *3 Attorney-General, Lovan, Assistant
Stratton Shartel, A. B. Attorney-General, respondent. *4 COOLEY, Cordy Defendant, Naylor, appeals judg- from the C. County sentencing
ment of the Circuit Court of him Howard years’ imprisonment twelve penitentiary upon in the conviction of degree. murder in the second County
The night fatal encounter occurred in Howard on the midnight. September 22, 1928, near A pie supper had been held Baldridge house, at the school which liad ended about ten o’clock.
During game supper (trap and after the progress had been in in a near-by pasture, by varying boys men, attended numbers of among whom were defendant deceased, and the Willard Conwell. The difficulty crap game present. occurred at the with about a dozen men Defendant, taking part deceased and others were in the game, which light played upon spread of a lantern a blanket upon ground. opposite Defendant and Conwell sat at sides of blanket, participants being dispute other A between them. arose between defendant and Conwell as to which was entitled to some money placed which had been on the blanket as a stake. Defendant picked money up the play, claiming after a he had won it. Conwell claimed defendant was not entitled to it. kneeling Both were then sitting ground. picking, on money After up the defendant threw quarter play, picked down a for the next up and Conwell and re- relinquish it, because, insisted, fused fairly he defendant had not money previous play, on the won the and that the dice should be again play. “shot” to determine that Defendant refused to do insisting play that, give that the had been fair up and that Conwell quarter picked up. dispute he had became heated and both parties empty As Conwell whiskey arose. rose threw an bottle at *5 striking and, defendant, shoulder, according him on to the State’s George evidence, speak Fisher, turned to to one whereupon defend- jumped knife, stepped ant drew his or across the blanket and stabbed just hip, inflicting Conwell the left side above the a wound from September which 1928. Conwell died on in self-defense. stabbed Conwell was that defendant defense
The that Con- to show tended testimony of his witnesses and that His arisen: defendant, who had “You he said threw bottle well he down,” and you that I’ll knock you son-of-a-bitch, or down, sit pocket hip his and right his hand behind him toward then threw me,” stepped towards as de- toward advanced defendant —“kinda when him he ad- testified, fendant defendant stabbed thus and that protect him- he Conwell vanced. Defendant testified stabbed that great by which bodily Conwell he then from assault and harm self jumped stepped across the blanket or apprehended. He denied that Conwell, talking to some one else at the or that the latter was toward witnesses, Winn, however, him. Jack testified he cut One of his time defendant, toward but that defendant did not advance that Conwell him jumped blanket Conwell and stepped or across the toward stabbed 'talking The other to some one else. witnesses while the latter was im- by his claim of self-defense were called to corroborate defendant jury which by testimony grand peached of members indicted* given testimony defendant, to the effect that said witnesses had before testimony substantially body trial and from their at the different A testimony at the with the of the State’s witnesses trial. in accord previous his of witnesses called defendant testified number good character. trial assailed the indictment
P In his motion for new defendant charge grounds any offense and did on the that it did not state grand jurors empaneled, were venue, nor charged., presentment swom or nor that their was made (cid:127) challenge upon oaths. No such the indictment their was made begins quash before trial motion to otherwise. indictment thus: Plaintiff, of Missouri,
“State
vs.
Cordy Naylor, Defendant. County, Missouri, September
“In the Court of Howard Circuit A. D. 1928 term. grand jurors body of Missouri,
“The for the State in and for the present County Howard, upon charge their oath and County
at the Missouri, Cordy of Howard State of and Naylor ...” charge
Then follows sufficient murder the second degree feloniously, wilfully, premeditatedly, purpose on and malice aforethought, assaulting stabbing with a knife, Conwell inflict- ing upon wound, him a from mortal which he died. The are facts alleged. sufficiently The indictment concludes: grand “And so jurors charged aforesaid, impaneled, aforesaid, sworn on thew *6 Cordy him say Naylor, the said Willard aforesaid, that the said oaths county aforesaid, manner and means Conwell, at the wilfully, premeditatedly purpose on aforesaid, feloniously, and against aforethought, murder, peace hill and his malice did and (Italics ours.) dignity of the State.” only stated, caption obvious that venue is in the but not “upon present body language indictment. their
in the of the The undoubtedly charge” oath a clerical mistake and intended and charge,” “upon present their as shown to read oath and part unnecessary language concluding indictment. It is challenge of further to discuss this view of Section indictment among 3563, 1929, provides, things, Revised Statutes which other judg- or information shall be deemed or that no indictment invalid proceedings stayed ment other thereon or affected for want of or perfect venue, allege proper a “nor for an omission to that the grand jurors any impaneled, charged” were sworn or nor for other rights imperfection prejudice tending defect or not the substantial Spano upon v. 6 S. (Mo.), the defendant the merits. [See (2d)W. We hold indictment sufficient. 849.] assigns Appellant error in
II. the refusal of the trial court application for his continuance of the sustain because absence of two witnesses, George 21, Winn Fisher. Jack and The trial was May on alleged application
1929. Defendant’s that Fisher lived County and that he had caused a sub- Rudolph poena May 14, to be issued both witnesses on which sheriff showing had returned as to Winn found; that could be that return subpoena no had been made as to Fisher but that a issued for him behalf of showing on the State had been returned that he could alleged not be found. It application Fisher, pres- that if ent, testify present difficulty would that he was at the time of the position between defendant and “in deceased and and all see hear place;” that took that deceased and engaged defendant were in a that, game craps; dispute between them arose as to who was money entitled to the and Conwell called defendant a G—d— son-of-a-bitch told him to sit down or he would knock him down whiskey striking threw a bottle at defendant him on the shoulder upon (Conwell’s) right him and then advanced with his “reach- hand ing him” behind and that it was at time that defendant struck Conwell with the knife. granting largely because of continuance absent witnesses is
within the discretion of trial court, and while the trial court’s refusing it a.ct.ion is reviewable here opin- when in our prejudice ion the court erred to the of defendant’s right substantial to a fair trial that will reverse we because such refusal. We are Sep- indicted at in this ease. Defendant persuaded
not so succeeding January term the At court. tember, term May term. to the application continued on defendant’s cause was down set was ordered day term, the cause May 6, On the first had day tried. Defendant *7 21, on which it was May trial for for con- application for prepare trial. His given ample to time alleged the testify setting to what Winn would out Jack tinuance was by Fisher. Winn alleged to would be testified same facts that it de- testimony favorable to was testified. His present and could alleged but court be, it would application fendant as other witnesses called two that in advance. Defendant not know difficulty. present were of the There present at time who were side, and de- difficulty not called either others who were at the not have obtained showing that he could offered no fendant present and testimony Fisher been of such others. Had used the have been would, his evidence would Avasclaimed he testified as it substantially to witnesses testified as two of defendant’s cumulative Conwell they they and left when True, said turned the same effect. him toward hip not see advance pocket his and did reached toward only were that he and Comvell testified defendant, but defendant argument began, the blanket apart when three feet about Conwell and that when platform, a narrow as to make folded so him toward him- pocket and “kinda started” reached toward his Conwell, so that on defendant’s own self “kinda leaned over” toward Generally testimony slightly if all. have advanced at Conwell could tes- of absent witnesses whose refusal of a continuance because reversible error. timony merely cumulative is not would be diligence ordering a that used due If it be allowed defendant county only living week before subpoena in another for a witness might eight days earlier, or'might have ordered it trial when he yet deposition, witness’ under all previously have taken the its think trial court did not abuse discretion circumstances we refusing the continuance. age years Appellant III. sixteen when the homicide was committed and under seventeen at the time the trial. grand jury jurisdiction him that the was without to insisted indict jurisdiction proceed court was and that without to offense, unde1’ indictment as for a criminal but that juvenile delinquent. have been dealt with as he should May having suggested 10, 1929, Prior to trial and on to attorney prosecuting that defendant under the court following age, court caused the order years to be seventeen entered of record: appearing haying undersigned Judge of
“It to the the Court jurisdiction delinquent children the defendant is a minor age years charged under the seventeen and stands with murder degree subject in the proper second defendant not a provision be dealt with Reformatory Law, under the of the Juvenile prosecute it is therefore ordered have said de- leave general provisions fendant under the law. Judge.”
“(Signed) Walebb, A. W. proceeded cause was with under the criminal law. question thoroughly adversely This considered and decided appellant’s contention this en. in the case court banc recent (2d) q. v. Walker, rel. 34 S. W. State ex Wells v. On the authority point issue, of that ease which is in and conclusive of the point against appellant. we rule this Complaint
IV. court, upon challenge, is made that the the State’s prospective juror, Eaton, excused a one whose voir dire examina *8 disqualified. by ap did not show he tion was In one case cited pellant support complaint, in of 226 Garrett, this v. State S. W. 4, twenty-two the court excused veniremen caused and twenty-two consulting others to be summoned without defendant. objection No after when verdict, made-until defendant in his charged objection motion for new trial It error. was held that the late, opinion say objection came too the does not. but the would have good timely had it been made. cases with Other cited deal overruling challenges by the for cause offered a defendant and ¡n point. are not A panel defendant is entitled of course a full to qualified, jurors challenges from which are be trial to made and the jury selected. But we know of law or no decision to effect that the right any particular person as of panel. he entitled to have on that may disqualified. be doubted whether Eaton was com But no plaint is duly made that the man in chosen Ms stead was sum not qualified prej fail moned and and we to see wherein defendant was may udiced. A court of its own motion examine and excuse venire men and the exercise of this discretion is not available as error unless abused. v. 134 35 Taylor, 109, 141, Mo. S. W. [State 92.] The does record not indicate court’s abuse the discretion. requested panel thirty qualified
V. that a men Defendant to jurors should be as furnished and that be allowed and serve twelve challenges. six peremptory request
the State That twenty-four allowing panel and a provided, ^nsed eight challenges. defendant and the State four is as- Error signed ruling, in for 3674, which calls construction of Section Revised Statutes 1929. charged in the second was murder by the indictment
Tbe offense by imprison- statute is degree, prescribed the punishment for which years no limit for not than ten with penitentiary in less ment the In imprisonment prescribed. such case of such to the duration Statutes 4457, Revised by statute, Section may, offender another for during imprisonment his natural life 1929, be sentenced to Ap- minimum. years prescribed any not less than number of may imprison- be punishment life contends that since pellant 1929, ap- 3674, Revised Statutes of Section ment the first subdivision reads: plies. applicable part of section be en- and the defendant shall “In all criminal cases state challenge jurors First, if as follows: peremptory to titled imprisonment in charged punishable death or offense right challenge life, for shall have the penitentiary state more; second, in cases twelve, all other and and no six the defendant by imprisonment penitentiary in shall punishable state have eight more; challenge right no four and the defendant and imprisonment in third, punishable by not death or all cases challenge num- penitentiary shall each the state and the defendant ” . . more; no . ber of three and challenges prescribes the number of The remainder of the section 100,000 inhabitants, allowed each side cities over previously 1925, cities. Prior Sec- same allowed such 1919, tions Revised the defendant and the Statutes. challenges 100,000 population, cities of over were allowed outside imprison- punishable by 1st, follows: if offense was death or eight life, twenty not than for- penitentiary, ment less punishable by imprisonment penitentiary if in the respectively; 2nd, years specified with no limit to the less than number imprisonment declared, six respectively; twelve and duration such *9 3rd, by imprisonment penitentiary, in cases in the punishable all other punishable by eight respectively; 4th, in and four and cases imprisonment penitentiary, in the or four each. In cities of death given 100,000 of over inhabitants the defendant the same number larger challenges, number than outside the State allowed but falling first In such in cases within the two subdivisions. cities amending procedure, 3925, Legislature in of the the code criminal 4017 4019 repealed Sections in lieu thereof what is and and enacted change 3674, 1929, only the now Section Revised Statutes substantial challenges in prosecutions in the number allowed outside 100,000 cites over inhabitants. legislative quoted
It must in the be conceded that the intent above might applies felonies, far portion 3674, Section so as it have expressed. clearly may plausibly more As it argued, worded be appellant contends, that the first subdivision includes all felonies as
345 by defining applying Section 4457 as which, well as the statute for by may punished offense, the offender be either death or im- the life Are it susceptible On the other hand think con- prisonment. the by intended to include those for which, struction defining prescribing the penal- of the statute offense and the the terms 4457, supra, penalty may the ty, and without resort to Section be making imprisonment; life thus the first or subdivision of death 1929, 3674, correspond meaning Revised Statutes in Section and ef- old fect subdivision of 4017 with first Section as to the class of offenses included. opinion are the latter is the
We correct construction of question. language in “punishable the statute The statute uses the ’’ imprisonment by penitentiary in death or for life. are There language applies to which that if we offenses treat sub- divers the first 3674, including only supra, of Section division offenses to which defining punishment as, tlie statute them affixes such example, degree, punishment specifically murder in the first for which the is punishment imprisonment; rape, or life for which death fixed death; may the statute be certain -for offenses which under act, 4461, “habitual criminal” Section 1929, Revised Statutes punishment “imprisonment must be the penitentiary for life.” Such offenses fell within the first subdivision old Section 4017.
It “punishable” true the word is the second subdivision of Sec- “may 3674, supra, clearly tion be punished,” means because there many may imprisonment punishment are offenses for which the be penitentiary may imprisonment jail in the be fine, or a but punishment provided by defining in those cases such statute seeming incongruity the offense. The of construction if disappears language we treat the of Section supra, punishment relative to referring punishment designated to the defining in the statute providing punishment therefor, offense and as not ap- those, plying which, offenses for under 4457, supra, Section may imprisonment punishment be assessed life but at for which the defining prescribe statute offense penalty. does not such sight do not lose of the may ap We fact that all statutes that be plicable together must be read if possible and construed har monized. construction of Section above does indicated if not render out of with Section 4457 or pro with other harmon37 statute, any express provisions visions more than did the old Section make that section statutory inharmonious with other provisions. question Legislature of what intended language amendatory seeking used In intent, statute. *10 purpose statutory
which the of language construction when the of judicial the neeessarj7, act is such that construction may we con 346 Legislature apparently in view in amend had purpose the
sider tlie ing former law. the defining pre- for the them many statutes are crimes which
There peni- imprisonment a punishment minimum term in scribe as imprison- such prescribed to the duration of tentiary without limit at imprisonment is fixed two of them the minimum ment. In some life im- be to years only. cases the offender could sentenced In such pointed always policy has been as out. But it prisonment, above statutes, by applicable as procedure, evidenced in our criminal falling challenges grave within the first cases more in those to allow punishment, in in which the than eases subdivision of old Section equivalent im- jury, may to life be a term at the discretion is) peni- usually in may (and be a shorter term the prisonment or tentiary. 4017 and relative provisions The of Sections challenges law of State allowed had been the statute this number criminal sixty years prior or more to the amendment for evidently was to purpose 1925. The of that amendment re- code in peremptory challenges prose- in criminal allowed duce the number except 100,000 inhabitants, in in of over which cities cutions, cities purpose law Such would provisions of the old were retained. by by ap- contended for be defeated the construction of statute punishable by penitentiary imprisonment in the pellant as to offenses prescribed years a specified for than number of without less imprisonment. such number of chal- limit to the duration of by lenges in such eases would allowed the defendant and six as respectively such remain twelve and under the old construction good heretofore statute. We think there is reason for difference by always generally, express made and still made statute larger supra, cities, terms of Section as to the between the challenges which should be allowed in the class of cases number grave last mentioned and those included in the first above offenses may for re- of old Section 4017. Reasons be seen also subdivision challenges ducing generally peremptory previously the number of Legislature do not in criminal cases. But we believe allowed depart long policy allowing more meant from the established challenges gravest import serious eases than those of less applying and to make reduction felonies to those nature, 100,000 gravity inhabitants, serious outside cities of. over of most adopted 3674 if the effect of Section we the construction as would be Legislature appellant. Had the so radical contended intended change long standing policy evidenced statutes such respect intended, moreover, to make a distinction in and had large State, and the rest of we think it would between cities might expressed terms, have clear unmistakable intent easily may the fact have done. be observed further that
347 100,000' express 3674 inhabitants Section in in. cities of over terms challenges punishment may more in cases where the allows be death imprisonment cases, not less than for life than in other or seems to legislative general to a policy us indicate intent adhere to the to regard referred that hereinabove to. that, appellant ruled court,
We hold as trial was entitled panel twenty-four qualified jurors, to a of whom State challenge eight. to four and the was entitled defendant VI. assigned Error is in that court excluded record evidence to prove had, offered defendant years pre- that Conwell several viously, carrying been convicted of weapon. Appellant a concealed evidence, coupled proof
insists that such with his offered conviction, he had competent that heard such was bearing upon apprehension the reasonableness his great bodily harm from Conwell at the time of the dif- nothing ficulty. not. There We think offer defendant’s carrying of proof weapon by indicate deceased had to or to defendant. Evidence that bore any relation reference deceased or reputation disposition violent char- turbulent competent since the would have defense offered was self- acter reputation proved by But such or character could not be dofense. having acts no specific of violence connection with or
evidence 242 (Mo.), v. 669; to defendant. Roberts S. W. State relation [State Green, 700; 642, 229 Mo. 129 S. W. v. 274 Woods, 610, Mo. v. State Jones, Upon v. 134 Mo. 35 21; 254, 204 S. W. State S. W. 607.] principle same offered evidence that had car- deceased once deadly weapon properly excluded. ried appearance
VIL the trial A. Lovan, Before B. Assistant Attorney-General, was entered of record as assistant counsel for the objected participation Defendant- to State. his in the trial on the ground that there had been no from proper order gOTe™.or Attorney-General ^ie to directing latter to send an to County assistant Howard attorney. prosecuting assist the The letter of the Governor to the Attorney-General proceed directed the latter to or to send an assistant Fayette County Fayette clearly instead of in Howard County, Fayette an County inadvertence since there no In the State. case, early an v. Hays, Attorney- Mo. it was held right attorney General had to assist the circuit requested when so latter, by the without an order from the Governor. We see no rea why might so, employed might. son do counsel In this case was an order from governor, except there that, sufficient clearly by mistake which one, county. deceived no it misnamed the officially acting for the State attorney present prosecuting supervi- the control and the assistant were under both he and prejudiced error in was not court. Defendant
sion of the order. Governor’s argu assigns (a) Lovan, Mr. VIII. as error: Appellant *12 in Missouri refer to crime waves jury, permitted to was “to the ment (b) reprimand states;’’ failure the same counsel other to and guilty I was as stating argument: in “1 would feel try jury persuade the ^ie defendant himself bring guilty ought to be a in of when there a verdict argument acquittal;’’ (c) permitting by counsel of verdict support him” defendant “without evidence to that for the State a on occasions used knife. had other time argument: in has a in (a)Mr. Lovan stated “There come necessary it that there states, well as in other when is Missouri as extraordinary impress juries effort to the who sit be an should importance enforcing the law.” Defend- criminal with the cases prev- objected argument speaking “to that line is ant —he argument prejudicial. think not of crime.” We that was alence persuaded quoted in '(b) remark above clause We are not that the setting exceptions bill prejudicial (b)was and moreover the part argument does not show that at the that defendant out requested a excepted reprimand. "or time attorney argument opening prosecuting said: “Evi- (c)In his brought that is not first occurrence that has been out this dence you a heard evidence. A man of defendant has used that knife — restraining. deeply type The State of Missouri’s that needs welfare object “We and except Defendant’s counsel: to that concerned.” “Well, Stay overruled. within record.” argument.” court: objection whether it counsel’s not from defendant’s was to It is clear knife to his the use of a or reference to the welfare of reference to by requested. court State. No further action was closing argument Mr. Lovan referred to defendant as In his using knife, he had it on that used two in the habit occasions. Objection counsel was made and sustained and was admonished to whereupon stay record, withdrew the remark. There within seemingly being reprimand, request for defendant satisfied was no court’s action. with the had, intimating prior that defendant on oc- was evidence
There difficulty boys, with a knife some one two other casions, used way impeachment defendant’s character wit- but came they had on cross-examination that heard of testified such nesses who bearing only counsel as have treated incidents. It should presented say the record we cannot upon that issue. But upon prejudiced, particularly defendant was view the fact specifically objected objection when such reference to the sustained, requested and no remark withdrawn further action of the court. argued
IX. that there no sustain substantial evidence to verdict; any if offense was it was man- committed agree slaughter. We do this contention. The with State’s evi- finding dence was sufficient to sustain verdict ¿[efeuciant guilty of murder. The court submitted manslaughter instruction, by an sufficiency of which chal- is not lenged, against jury but found on that defendant issue. judgment Finding
The verdict due are in form. no reversible judgment error in the record the is affirmed. Fitz- Westimes and CG., simmons, concur. opinion
PEE foregoing adopted CURIAM: The Cooley, C., is opinion judges of the court. All of the concur. *13 v. Taylor, Hunter Albritton Orville Appellants. (2d) S. W. 676. Two, July 3, Division 1931.