90 Mo. 37 | Mo. | 1886
Defendant Ann Crocket was indicted at the June term, 1883, of the Audrain circuit court for arson, and the other defendants, Smith, Redman and Crio ver, were jointly indicted with her for inciting, etc.,
At said first trial defendant made affidavit against the sheriff and his deputy, charging them with prejudice against him, and the court thereupon appointed one Robyns to summon the special venire — and said Robyns acted in that behalf at the first trial of the cause. At the January term (when the second trial occurred and this conviction was obtained) said Robyns declined to further act, and the court thereupon (against the objection of defendant) appointed one Joseph James, who was not the coroner of the county, to act in this behalf. Refendant renewed his said objection to the appointment of said James and his authority to summon the jury, by filing his motion to quash the panel, upon said ground, among others, that the court having found the sheriff disqualified to act in summoning the jury, by reason of prejudice against defendant, the coroner of said county was the only' officer designated by the statute to act in this behalf in the place of said sheriff. R. S., 1879, secs. 3893-4-5. This motion was overruled and this action of the court is assigned and urged here as error.
At common law the coroner was authorized to perform the duties devolved on the sheriff in summoning a jury, whenever the sheriff was incompetent to act, and in this event the process of the court was directed to the coroner instead of the sheriff. If it was, suggested or made to appear that the coroner was also disqualified then the court appointed persons of its own nomination called elisors to act in that behalf. Said elisors were particular officers of the court, acting under its special authority. Section 3894, Revised Statutes, provides that “every coroner within the county for which he is
The plain purport of the statute is to substitute the coroner for the sheriff in respect to the duties of such office, whenever the contingencies contemplated arise, and where the law thus devolves the performance of such duties upon a designated officer, they are not authorized to be performed by another officer, or by any different person, without at least some suggestion of disability on his part, except in the cases and upon the terms provided. in Revised Statutes, section 3893. In executing the special venire, the officer exercises the power of selection confided to the sheriff at common law, and the character of the officer performing this duty is important and material, and if such duty is performed by an officer not authorized, this is, we think, a good ground of challenge to the array. Thompson and
Another error complained of is, that the defendant ■ was not present in court, whilst the jury was being’ impanelled and examined as to their qualification .to sit as jurors in the cause. The facts in this behalf, as the same appear in the record before us, are as follows: The defendant was not in court, except by his counsel, when the venire facias was issued, nor when it was returned by said James, nor when the jury was examined, on the voir dire, nor at any time during the proceedings in said cause, till the jury was called to try the same on the eighth day of February, 1884, at one o’clock p. ar., which was four days after the venire was issued, and forty-eight hours after said jury was examined on the voir dire, but at the expiration of the forty-eight hours from the time the copy of the list of jurors was served on the defendant, and before the state or the defendant was required to make challenges. The said panel of jurors being present in court, and the defendant in person also being present, and his attorney also, the court then informed defendant and his counsel that they now had an opportunity to make such further examination of the jurors as they might deem proper, whereupon defendant’s attorney said they would then demand an additional forty-eight hours before making their chal.lenges, which the court refused to give, and defendant’s counsel thereupon declined to make such further examination of the jurors. Before exercising his right of peremptory challenges defendant filed his motion to
The question thus presented involves a construction, in connection with this state of facts, of Revised Statutes, .section 1891, which provides that, “No person indicted for .a felony can be tried unless he be personally present during the trial * * * ; and that in all cases the verdict ■of the jury may be received by the court and entered upon the records thereof in the absence of defendant, when such absence on his part is willful and voluntary * *. and that when the record in the appellate court shows that defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial.” At common law, if the accused was in such cases absent, either in person or by escape, there was by reason of his said absence, a want of jurisdiction over the person, and the court could not proceed with the trial or receive the verdict or give judgment. Cooley’s Const. Lim., 390. But under the statute if the absence of the defendant is wilful and voluntary, the court is authorized to receive and enter the verdict, and this is, by the express terms of the statute, the only action the court is authorized to take “during the trial” where the same is for a felony, unless the accused is “personally present.” In other words the statute means, we think, that in all cases of felony, it is necessary that the defendant should be personally present in court at each and every material step taken during the trial up to the time when the verdict is to be received, when the particular steps mentioned in the statute, of receiving and entering the verdict, may be taken in his absence, if the same is wilful and voluntary. Impaneling ' and examining the jury is, we think, manifestly a material, substantive and important step “during the trial,” within the meaning of this section.
In the case at bar, the accused was out on bond and. not in prison or custody, but this, we think, under the statute, makes no difference even, if we must infer, as suggested by counsel, that his said absence was voluntary on his part. As already said, if his absence is wilful, and voluntary, the verdict may be received and entered of record, for the reason that these steps during the trial are expressly authorized by the statute, but the expression of authority therein to do these particular acts, must be held to exclude all authority to take any other step “during the trial,” unless the accused is personally present. This requirement of the statute is one he cannot waive. It is not made for his benefit only and his rights are not all that is involved, or contemplated in said enactment. In the case already cited the court further says: “We are of opinion that it is not within .the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary proceeds upon the ground that he alone is concerned as to the mode by. which he may be deprived of life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well of the relation which the accused holds to the public, as of
But it is contended for the state that this omission is cured by the subsequent offer of the trial court, when the case was called for the purpose of making peremptory challenges and proceeding with the trial, to allow the accused to then examine the jury as to their qualifications, and that as he declined to do so at this time none of his substantial rights were affected prejudicially. But this view is, we think, not satisfactory for a variety of reasons. In the first place, examining the jurors when the accused was not personally present, was not merely an irregularity in the mode and process of impanelling the jury, as to which a large discretion is allowed the trial court, and whose action it is said will not, as to such irregularities, be reviewed unless some actual prej udice to the defendant is made to appear, but
But the examination of jurors as to their qualifications as such, does not, we think, consist altogether or exclusively in their examination in said respect by the accused, or his counsel, which is the extent of said offer so made by the court. Their examination by the prosecuting attorney, or by the court, or both, as to their qualification under the statute, and such further examination, if any, became necessary or proper in the examination of the case, as to other causes of disqualification than those mentioned in the statute, and such ether examination made by the state’s attorney, if any, with a view to the exercise of his peremptory challenges, all constitute a part, or may do so, of the examination and trial of the jurors in this behalf. The opportunities for observing the conduct and bearing and manner of the juror throughout the whole examination, as well that by the state as that on his own behalf, may be of great value to the accused. The accused has opportunities thus afforded for inquiry, and comparison and for inspection of the jurors personally as they thus undergo the examination as a whole. The practice at
Por the reasons above stated, we are of opinion, that the trial court erred in overruling defendant’s-motions, above complained of, and for that reason, its judgment is reversed and the cause remanded for further proceedings, in conformity hereto.