106 Mo. 111 | Mo. | 1891
Defendant was indicted in the circuit court of "Wayne county, at the November adjourned term of said court held at Piedmont in February, 1889, for the murder of Hiram Antis. A change of venue was afterwards granted to Iron county circuit court, in which defendant was tried and convicted of murder in the first degree, from which he has appealed.
I. It is insisted, in the first place, that the act of 1887, page 153, which provides for holding terms of the circuit court at Piedmont, is a local or special act, and the notice, required in such cases, not having been given, is unconstitutional and void, and the indictment found by the grand jury in the court held by authority thereof, was a nullity. The important question here raised has been, at this term, settled by the decision of division 1, in the case of the State ex rel. Hughlett v. Hughes, 104 Mo. 459. In that case the act of 1889, page 68, establishing terms of the circuit court of Montgomery county, at Montgomery City, was questioned also, as being in conflict with various provisions of the state constitution. It was held that the act in question did not embrace more than one subject, whose title was
II. Under an act approved May 30, 1889 (Acts 1889, p. 67), Wayne county was detached from the twenty-third and attached to the twenty-sixth judicial circuit' of the state, and the time for holding court, at Piedmont, changed to the fourth Monday in September. On the twenty-sixth day of September, 1889, a term of court was held at Piedmont by the judge of the twenty-sixth circuit. At this term defendant was arraigned, and called upon to plead. , This he refused to do for the reason, as given, that the act attaching Wayne county to the twenty-sixth judicial circuit did not take effect until the first day of November, 1889. The court ordered the clerk to enter a plea of not guilty.
Section 16 of the act declaratory of the Revised Statutes (Acts, 1889, p. 149) provides that, “The Revised Statutes, as declared by this act, shall take effect and go into operation from and after the first day of November, 1889, except such acts passed by the present general assembly, and . incorporated .therein, as shall by their provisions take effect at a different time ; acts changing the time of holding courts shall take effect in ninety days after the adjournment of this session of the legislature; and until the Revised Statutes shall go into effect, as herein provided, the existing statutes shall continue in force.” The act in question changes the territorial boundaries of the twenty-third and twenty-sixth circuits, and changes the times of holding courts therein. Both purposes are accomplished by the single act. This act did change the time of holding the courts in these circuits, and the whole act, and not a part only, went into effect under section 16, supra, “in ninety days after the adjournment of
III. The record shows that Monroe Gill was one of the panel of grand jurors by which the indictment was found. No other Gill was on the jury. The indictment was indorsed, “a true bill, Wm. M. Gill, foreman of the grand jury.” An objection was made to the indictment by motion to quash, on account of not being indorsed by one as foreman whose name appeared as a member of the jury. The state offered witnesses who testified that Monroe Gill and Wm. M. Gill was the same person, and that he always signed his name Wm. M. Gill. Objection was made to this testimony on the ground that it was an attempt to contradict the record by parol evidence.
The foreman of a. grand jury is required to certify under his hand, that the indictment is a true bill by the following indorsement, thus: “A true bill, A. B. Foreman.” R. S., sec. 4090. All that is required, by this statute, is the usual signature of the foreman to the certificate. 1 Bish. Crim. Proc., sec. 698; State v. Taggart, 38 Maine, 298; Studstill v. State, 7 Ga. 2; Commonwealth v. Gleason, 110 Mass. 66; State v. Burgess, 24 Mo. 381. The court appoints the foreman, indictments are returned into open court by the foreman, in the presence of the whole jury. It would seem impossible that the court could be imposed upon. The presumption that the indorsement upon the indictment was that of the foreman, appointed by the court, would be so strong that one objecting should show the contrary. The evidence coming from the state was unnecessary, and did no injury to defendant.
IV. The indictment was signed by M. M. Sheets as prosecuting attorney, as appeared from the transcript of the records of Wayne county.' Defendant insisted 'that the original was signed N. M. Sheets. He asked for writ of certiorari for the purpose of getting a corrected record. The court upon inspection of the original
V. There was no error in permitting an attorney other than the prosecuting attorney of the county to assist in the prosecution. State v. Taylor, 98 Mo. 243 ; State v. Robb, 90 Mo. 30.
VI. • The court gave the jury the following instruction: “ If you find from the evidence in the cause that some one else beside defendant wilfully, deliberately, premeditatedly, and of his malice aforethought, shot with a shotgun, and, by shooting, killed said Hiram Antis, alias John Martin, and that defendant was' then and there present, wilfully, deliberately, premeditatedly, and of his malice aforethought, aiding and abetting such other person in so shooting and killing said Antis, alias Martin, then defendant wilfully, deliberately, premeditatedly, and of his malice aforethought, shot and killed said Antis, alias Martin, within the meaning of the foregoing instruction, and is as guilty under this indictment as if he had fired the gun himself.” The indictment, in the usual form, charged defendant alone, as principal, with murder in the first degree. No one was charged as being accessory to the crime. Two objections are made to the foregoing instruction: First, that, under the indictment, defendant could not be found guilty as accessory before the fact. Second, that there was no evidence that defendant was present aiding and abetting the one who perpetrated the crime.
There is no force in the first objection. All distinction between principals, principals in the second degree and accessories before, the fact have been abolished by section 1649, Revised Statutes of 1879. All
The acts and conduct necessary to constitute oné a principal in the second degree are formulated by Wharton in his work on criminal law (volume 1, sec. 211a) as follows: “ Something must be shown in the conduct of the bystander, which indicates a design to encourage, incite, or in some manner afford aid or consent to, the particular act; though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement. ‘ Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental, it is evidence; but no more than evidence, for the jury.’ It is not necessary, therefore, 'to prove that the party actually aidéd in the commission of the offense; if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able readily to cometo their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting.” “Mere consent to a crime, when no aid is given, and no encouragement rendered, does not amount to participation.” 1 Whart. Crim. Law, sec. 211 d ; White v. People, 81 Ill. 333; Tullis v. State, 41 Tex. 598; State v. Walker, 98 Mo. 95.
In order then to justify this instruction, the evidence must have tended to prove, that defendant was present when the crime was committed ; that he understood the homicide would be attempted ; and that he did some act in aid of his principal in the commission of the felony, or his presence gave encouragement to its perpetration.
Immediately on hearing the shot, the agent of the depot-went out of the door, went to the north and then to the south end of the depot, and saw defendant about half way from the depot to the house. He seemed to hesitate a moment as though undecided, and then called to him to come and they went together to the house. The wife of deceased was already there. This was the agent’s testimony, which conflicts somewhat with that of the wife. Defendant was seen with no gun, arid none was found on the premises. Defendant remained at the house during the night rendering necessary assistance, and continued there until after the funeral, but being-absent on the next day when the inquest was held. Nothing suspicious in his conduct was shown during this time except in absenting himself during the inquest. Nothing, so far, indicates sufficiently that he had any knowledge that a crime was to be committed that night.
The evidence tended further to prove that defendant and his brother Lewis, within a few days previous to the homicide, had made threats against deceased. On this subject the railroad agent, Gibson, testified: “ A night or two before the killing, Orrick and his brother Lewis were in my office two or three hour's ; we talked about everything; Henry Orrick asked me if Martin (deceased) had made any threats against him. I told him he did make threats, and he wanted to know what they were, and I told him that Martin told me that it would not be very good for him to catch him that night or any night, it made no difference where it was * * * because he said he was as good a man and a
“Q. Did you tell him anything about Martin telling who shot old man Antis ? A. I told Orrick that Martin said he knew the tracks were Orrick’s, told him that Martin told me he could figure by the tracks the man who did it; had his eye on him.
“ Q. Hid you say anything to Henry about the noise of the crack of the pistol or the gun, that night old man Antis was shot? A. I told. Orrick, Martin said he knew the sound of the pistol, and it was Orrick’s.
“ Q. Ho you remember anything about Orrick’s replying that he’d give him some of the same kind of medicine — Martin—or put him where he wouldn’t'talk about people ? A. Well, he just told me that he had been there just a little longer than Martin had, and he better look out or probably he would get the same the old man got — the old man Antis ; and what the old man Antis got is just about what Martin got, that is just about the size of it.”
Haniel Chance testified substantially the same as Gribson. Chance also testified :
“ Q. Ho you remember of his telling you of having met Martin somewhere? A. Yes, sir. He said he met Jno. Martin [ deceased ] in the road on the other side of the blacksmith shop there, and he said if it had not been for Slavin’s little boy with him, he’d dropped him in the road at that time. This was.before Martin was killed. After the killing Orrick told me he was at Martin’s house at the time of the killing.”
Soon after the murder a warrant was issued for the arrest of defendant. He, his brother Lewis and the wife of old man Antis were then together in concealment in the woods. He was arrested by the sheriff, but escaped by. giving an assumed name. He, his brother
Throwing the light of all the facts and circumstances, preceding the killing, upon the homicidal act and defendant’s presence and conduct on the occasion, and taking in connection his flight in company with his brother and Mrs. Antis, his threats and admissions thereafter, we cannot say that the evidence was insufficient to justify the jury in finding that defendant’s brother did the criminal act, and that defendant was present, giving him aid and encouragement. The jurors are the judges of the facts, and their probative force. If an inference of guilt can reasonably be drawn from the evidence there should be no interference by this court, in criminal as well as in civil cases. State v. Lowe, 93 Mo. 569; State v. Cook, 58 Mo. 548 ; State v. Musick, 71 Mo. 401.
VII. During the progress of the trial and before the case was finally submitted to the jury, the sheriff permitted the jury to separate in the following manner : Sunday morning one of the jurors was not well and remained in the room in the sheriff’s residence, while the rest went to breakfast. After eating the sheriff took them to their room in the courthouse. He returned for the absent juror the door of whose room had, during the time, been locked. The juror was not yet up, and the sheriff again left him not locking the door. The juror afterwards went down to the family room of the sheriff, and asked his wife where the sheriff and the rest of the jury were. She told him the sheriff would be there for him soon, asked him in and gave him a paper to read. In about ten minutes the . sheriff came for him ; no one was shown to have been seen by
The rule was followed in this state for many years that the separation of a jury, in a criminal case, was not sufficient to authorize a reversal of a judgment, unless it appeared that improper influence had been exerted, or there was just ground for suspecting such influence. The history of the administration of the criminal law under this rule demonstrates that during the ;time it was followed, granting new trials was of common occurrence upon this ground, and a conviction was seldom obtained that was not attacked on the ground that the jury had been permitted to separate, and, during such separation, improper influences had been exerted over them. Whitney v. State, 8 Mo. 165; State v. Mix, 15 Mo. 153 ; State v. Barton, 19 Mo. 227; State v. Igo, 21 Mo. 459 ; State v. Carlisle, 57 Mo. 102 ; State v. Brannon, 45 Mo. 330 ; State v. Matrassey, 47 Mo. 295; State v. Bell, 70 Mo. 633. Under the revision of 1879 three new sections on this subject were adopted, sections 1909, 1910 and 1966.
These new sections were evidently designed to effect some change in the conduct of criminal trials. Section 1909 so far as it affects the trial of capital cases was but declaratory of the common law, which forbade the separation of the jury during the trial in all felony cases. 1 Bish. Crim. Proc., sec. 995. In so far as said section authorized the separation of the jury in felony cases other than those made capital by the statute, it effected a relaxation of the common-law rule to the extent of permitting a separation of the jury by consent of the parties. If this section stood alone no such change in the statute could',be seen as would require any change of the practice in respect to the separation of the jury, or the rule, above mentioned, requiring suspicion of improper influences upon the jury before a verdict would be set aside on account of a separation.
The facts in some of the foregoing cases indicate that this last rule was applied to separations occurring during the progress of the trial. The fact that section 1966 only applies to separations after the jury retire to deliberate upon their verdict was not adverted to, and, we presume, was overlooked. Certainly, the statute could not be held mandatory as to a duty not mentioned therein or implied from its terms.
A number of other minor questions were raised by the record and earnestly urged by counsel as constituting grounds for reversal. We have carefully examined them all and are able to find no error affecting the substantial rights of defendant. Judgment affirmed.
ON MOTION TO TRANSFER TO COURT IN BANC.
Macfarlane, J. — A motion to transfer this cause to the court in banc was made after the decision, under the mistaken belief that one of the judges did not sit at the hearing or participate in the decision. In the case of State v. Armstrong, one of the judges did not sit, and a motion was made to transfer the cause to the court in banc for that reason. The court in that case held, though ho opinion was written, that the right of the