22 Mo. 321 | Mo. | 1855
delivered the opinion of the court.
The defendant was indicted for an assault with the intent to kill one Frederick Kolb. The indictment contained three counts; the first count charged the assault and stabbing to have been done by the defendant, with malice aforethought, with intent to kill. The second count with stabbing, with intent to kill; the same as the first count, leaving out the charge of malice. The third.count charges that the defendant feloniously and wilfully, and by his act and procurement, did strike, stab, penetrate and cut the said Kolb, giving to him one wound, of the length of one inch, and of the depth of four inches ; charging that the said Frederick Kolb was then and there in manner and form aforesaid, wounded, and did receive great bodily harm by the felonious act of him, the said George Weber.
There was a trial and verdict of guilty, under the third count, and punishment assessed to six months’ imprisonment in the county jail and five hundred dollars fine. A motion for a new trial was made and overruled, and an appeal taken to this court.
The bill of exceptions shows that when the case was called,
The bill of exceptions also shows that the jury, after they had retired to consider of their verdict, and were in charge of
These various matters are alleged by the court for the defendant, in this court, as grounds for reversal of the judgment of the criminal court.
So far as regards the dispersing of the jury, after making up their verdict, sealing it and delivering it to the officer who had charge of them, and then separating until next morning and meeting in court to render their verdict, this act alone will not be regarded as any sufficient reason for setting the verdict aside. The mere dispersing of the jury is not enough to authorize the court to disregard their verdict. This point has been often ruled thus by this court. In two cases, decided at Jefferson city by this court at last term, (State v. Harlow, and State v. Igo, 21 Mo. 446 and 459,) the same doctrine is held. But if there be any reason to believe that the jurors, or any of them, have been tampered with, or improperly influenced, or any wrong means have been exerted over them, in consequence of their thus dispersing, in any manner so as to influence their verdict, then it should be set aside at once. But there is nothing of that character intimated here. There is, then, no ground for reversal, so far as this point extends.
There is nothing in the point of the swearing of witnesses. The state of the record will not justify this court in reversing for this cause, even if it were a good cause when it sufficiently appears upon the record. The defendant and his counsel saw these witnesses sworn ; they knew they weré sworn in his case to testify. Had the slightest intimation been made against their testifying, it could, and out of abundant caution might, have been obviated. But the record shows that the witnesses were sworn.
Since the doctrine of arraignment has been maintained, I will state my views upon it somewhat more at length. The.term arraignment means the calling of the defendant to the bar of the court to answer the accusation contained in the indictment. (2 Lord Hale’s Pleas of the Crown, p. 216.) Arraigns is ad rationem ponere, to call to account or answer. Lord Hale says that arraignment consists of three things : “ First, the calling the prisoner to the bar by his name, and commanding him to hold up his right hand, which, though'it may seem a trifling circumstance, yet it is of importance, for, by holding up his hand, constat dé persona indiclati, and he owns himself to be of that name ; second, reading the indictment distinctly to him in English, that he may understand his charge ; third, demanding of him whether he be guilty or not guilty, and if he pleads not guilty, the clerk joins issue with him, cut. prist, and enters the prisoner’s plea, then demands how he will be tried; the common answer is, “ by God and the country,” and thereupon the clerk enters po. se., and prays to God to send
Upon the whole record in this case, we think the judgment should be affirmed. Let it therefore be affirmed;