State v. Rose

| Mo. | Mar 15, 1862

Bates, Judge,

delivered the opinion of the court.

The defendant was indicted for murder in the Circuit Court of Clark county, at the September term, 1858. He was tried at the April term, 1861, and found guilty of murder in the second degree, and sentenced to be imprisoned in the penitentiary for ten years.

It appears by the record that thirty-six persons, summoned as jurors, were sworn on their voir dire, when one of them, James Turner, being examined, stated that he had formed an opinion as to the guilt or innocence of the accused ; that that opinion was founded upon rumor, and was not such as to prejudice or bias his mind so that he could not give the defendant a fair trial. He further stated that he could hear the evidence, and give the defendant a fair and impartial trial, regardless of the opinion thus formed from rumor; that he had heard the circumstances attending the killing by several persons, but did not know them to be witnesses; that he did not know who the witnesses were; and if the case should turn out to be as he had heard it, his mind was fixed and made ; and that the opinion he had first formed remained still, and that he had never heard any person talk about the case who pretended to know any of the facts themselves, but they spoke of them as though they had heard them from others.

The defendant moved that the name of the juror be stricken from the panel, which motion the court overruled. The name of the juror (Turner) appears in the list of the jurors who tried the case.

The 14th sec. of art. VI. of Practice in Criminal Cases (2 R. C. 1855, p. 1191,) provides that “it shall be good cause of challenge to a juror that he has formed or delivered an opinion on the issue or any material fact to be tried; but if it appear that such opinion is founded only on rumor, and not such as to prejudice or bias the mind of the juror, he may be sworn.”

The case of the juror (Turner) comes fully within the exception in that section, and he was a competent juror, and the court committed no error in refusing to strike his name from the list.

When E. B. Davis, another of the panel of thirty-six, was examined, he stated that he had formed and expressed an opinion; that his opinion was founded on rumor, but he did not think it would bo in his way of giving the accused a fair and impartial trial, according to the law and evidenee, regardless of the opinion he had formed; that he had the same opinion still, and that it would take evidence to remove it; that he had heard a great deal said about the circumstances of the case, and if it should turn out in evidence as he had heard, his mind was made up on the subject of the guilt or innocence of the accused; but he had never heard anybody talk about the case who pretended to know anything of the facts themselves — they spoke as though they had heard these things from others. The defendant moved that the name of this juror be stricken from the pannel, which the court overruled. The name of this juror does not appear in the list of those who tried the case, nor does it appear that he was challenged either for cause or peremptorily, nor anything from which it can be inferred that the defendant has suffered any injury by his being retained on the list of thirty-six. His case does not come within the exception in the clause of the statute above quoted. It does not appear affirmatively that his opinion was not such as to prejudice or bias his mind, and in that, does not fulfill the requirements of the statute ; but, as he was not upon the jury which tried the case, and the defendant was not otherwise injured by the action of the court in reference to him, there is in it no reason to reverse the judgment.

When G. R. Hamersly, another of the thirty-six, was examined, he stated that he had not formed or expressed an opinion in regard to the guilt or innocence of the accused, but that he was present at one time when Jonathan Hewitt, a witness for the State, gave a history of the transaction; but that he had formed no opinion after hearing the history of the matter; that Hewitt was not talking to him, and he did pay much attention to what he said, nor did he remember the conversation now; that he had no opinion as to the guilt or innocence of the defendant, or upon any material issue in the case, and that what he had heard would not be in his way in making up his verdict. The court overruled the motion made by the defendant to strike his name from the list. His name does not appear in the list of the jurors who tried the case, nor does it appear that he was challenged either for cause or peremptorily. He was a qualified juror; but if he were not, the defendant has suffered no injury on his account.

The case being tried, it appeared in evidence that the defendant and the deceased were engaged in a verbal altercation, during which the deceased held in' his hand an open knife concealed behind his person; that the defendant advanced as if to strike the deceased, when a bystander called to him that deceased had a knife. Defendant then sprang back, and throwing off his coat went a few steps (southward) and picked up a spade which was lying there on a pile of sand. When the defendant sprang back from the deceased, he (deceased) started in the opposite direction, (northward,) retreating slowly, walking backward, leading his horse by the bridle, and still holding the knife in his hand. When the defendant picked up the spade, he immediately turned and pursued the deceased until he overtook him, and struck him on the head with the spade a blow which caused his death a few hours afterward.

The court gave to the jury ten instructions on the part of the State, two on its own motion; and four on the part of the defendant; and refused three asked by defendant. The first five instructions given on the part of the State, all define and have reference only to the crime of murder in the first degree. The defendant was found guilty of an inferior grade of crime, and it is not perceived how the defendant could have been injured by them, or upon what grounds he can complain of them. It is true that the jury may have been induced by those instructions to find the defendant not guilty of the first degree of murder, which is their verdict as to that degree; and he thus has the advantage of them, and has suffered no injury in regard to the charge of that degree of murder. As they have no reference whatever to the degree of murder of which he was found guilty, they could not have influenced the jury in so finding their verdict. Therefore, no opinion is given as to the legal propriety of those instructions. The same remarks apply to the second instruction given by the court on its own motion.

The last five instructions given on the part of the State, and the first given by the court on its own motion, are not specifically objected to in this court, and having examined them carefully, we find no error in them.

The three instructions prayed by the defendant, and refused by the court, refer entiroly to the law of self-defence, and therefore had no application to this case, in which there was no evidence at all that the killing was done in self-defence. Instructions should, in reality, be aids to the jury in forming a correct verdict, and it is as much the duty of the court to refuse instructions which have no application to the case and which might confuse the jury, as it is to give plainly expressed instructions in reference to the evidence given to assist the jury in its application.

Judgment affirmed.

Judge Bay concurs. Judge Dryden having been of counsel in the court below, did not sit in this cause.