State v. Schmidt, 137 Mo. 266

State v. Schmidt

137 Mo. 266 | Mo. | 1897

Burgess, J.

The defendant with two others, Peter Schmidt, and Samuel Poster, was indicted in the circuit court of St. Louis county for murder in the first degree, in shooting with a pistol and killing one Bertram A. Atwater, at said county on the night of January 5, 1896. The murder was committed in the attempt to carry out a preconcerted plan between the parties to rob the deceased.

On motion of defendant a severance was ordered and a separate trial granted him. Thereafter on the third day of August, 1896, defendant was convicted under said indictment of murder in the first degree. He appealed.

The facts connected with the killing, and the conspiracy theretofore formed by the indictees to rob deceased, are so fully stated by Gantt, P. J., in an opinion delivered at the present term, in the case of State v. Peter Schmidt, 136 Mo. 644, it is thought that no useful purpose will be subserved by restating them.

While it is true under section 4138, Revised Statutes 1889, defendant had a right to a copy of the indictment against him for at least forty-eight hours before his arraignment thereunder, yet it was a privilege that he could, and did in fact, waive by pleading to the indictment and going into trial without it, and he could not raise the objection after verdict.

It was said in Lisle v. State, 6 Mo. 426, that a person under indictment for a capital offense may waive his right to a copy of the indictment, and if he pleads and goes to trial without objection because of the want of such copy he waives the objection and can not raise it after verdict. That case was followed and approved in State v. Green, 66 Mo. 631. The same rule has been announced elsewhere. State v. Jackson, 12 La. Ann. 680; Patterson v. State, 48 N. J. L. 381.

*270No error was committed in overruling defendant’s motion to require the state to elect upon which count in the indictment it would proceed to trial, nor, after the close of the evidence, upon which count it would ask for a conviction. Such, matters rest in the sound discretion of the trial court, and, in the absence of its abuse, this court will not interfere. State v. Green, supra. Where the counts in the indictment all relate to the same transaction, as in the case at bar, it is not error for the court to refuse to compel the state to elect on which count it will proceed. State v. Turner, 63 Mo. 436; State v. Porter, 26 Mo. 201; State v. Sutton, 64 Mo. 107; State v. Noland, 111 Mo. 473.

The statement made by defendant with respect to the homicide was voluntary upon his part, and made without any inducement whatever being held out to him to do so. It was clearly admissible, and it was so held by this court in State v. Peter Schmidt, supra. Under the circumstances no instruction as to the weight to be given to it by the jury was necessary or proper.

All of the counts in the indictment related to the same transaction and charged but a single offense. In such case a general finding of guilty is proper. State v. Sivils, 105 Mo. 530; State v. McDonald, 85 Mo. 539; State v. Miller, 67 Mo. 604; State v. Brooks, 92 Mo. 542.

While the trial was in progress one of the jurors, Alexander Stuby, was taken ill so as to necessitate the services of a physician, and on several occasions he was removed for a short space of time from the presence of the other jurors; but was always in the charge of the deputy sheriff, who testified that on no occasion did he, or anyone else, converse with Stuby or any member of the jury about the case.

It has always been ruled by this court that section 4209, Revised Statutes 1889, prohibiting the separation of jurors in capital cases, must be strictly observed. *271State v. Murray, 91 Mo. 95; State v. Gray, 100 Mo. 523. In this ease, however, the state assumed the burden and affirmatively showed to the satisfaction of the court, that the jurors were not subject to improper influences, and under such circumstances it has been held to be no ground for reversal. State v. Orrick, 106 Mo. 111; State v. Rowell, 117Mo. 307; Statev. Sansone, 116 Mo. 1.

The case seems to have been well tried, and the record free from substantial error. The judgment is affirmed.

All of this division concur.