72 Mo. 37 | Mo. | 1880
The defendant was indicted for an assauLt upon William Webb with intent to kill. At the March term, 1880, of the Bates circuit court, he was tried, found guilty and sentenced to two years imprisonment in the penitentiary. He appealed from the judgment, and the points relied upon for a reversal will be noticed in the order in which they are made in the brief of his counsel.
He also referred to defendant’s physical strength, stating that he was a strong, robust man, and one whom very few men would like to come in contact with in a personal encounter. It was wholly immaterial whether he was a strong, robust man, whom few would like to encounter or not. He was charged with shooting at Wm. Webb, and whether a weak or a strong man, was a matter of no consequence.
Mr. Bassett also said he “ believed defendant guilty.” I suppose no attorney ever made an argument to a jury, in such a case, without expressing his belief of the guilt or innocence of the accused on the facts. Other equally trivial statements made by the attorney in his closing address to the jury are complained of, but they are of the same character as the above.
The only additional remarks made by the attorney, which we shall particularly notice, was the following : “ Judge Boxley has said that defendant is a good man, and why did’nt they (the prosecution) show he was a bad man? Now, gentlemen, why did’nt they prove his good character? When I defend a criminal, if he can prove a good character, the jury always gets the benefit of it. The State could not prove his bad character until defendant attempted to prove his good character. Mr. Boxley ought to have been lawyer enough to know this. We were ready to go into this matter, and the very fact that they did not attempt to prove him to be a man of good character, is a significant fact. Gentlemen, criminal lawyers always do this; they all understand it.” Mr. Boxley, by his remarks, opened
of jurors and bail-' iff in charge of jury. conduct After the case was given to the jury, one of them asked the deputy sheriff, who had charge of them, if they jamAT1t isnmerrc. could find a vei'dict and the court fix the pun-The deputy sheriff made no reply. The juror asked him to see the judge and ascertain, but he did not see the judge, and nothing further on the subject passed between him and that or any other juror. It further appears, by affidavit filed on motion for a new trial, that the prosecuting attorney was examining and inquiring as to the law on that point. He had learned from the deputy sheriff that the jury desired information on the subject, hut told no one else, and it seems that this is all that occurred. While it is improper for jurors to hold conversations with any one except the court, in open court, in regard to a cause submitted to them, this court will not reverse a judgment when all the facts with respect to the alleged impropriety are before the court and it is manifest that it could not possibly have prejudiced the defendant. It was improper for the juror to ask the bailiff any questions as to the law of the case, and while he acted within the line of his duty in refusing to answer the question, he should have been equally careful not to communicate what passed between -him and the juror to the prosecuting attorney or any one else. If the jury had any doubt about the law of the case, if they desired additional instructions, they should have repaired in a body to the court room, and while court was in session, and made it known to the court. The alleged misconduct of the juror and the bailiff could not possibly have prejudiced the accused, and is no ground for reversing the judgment.
The judgment is affirmed.