117 Mo. 570 | Mo. | 1893
At the November term, 1890, of the criminal court of the city of 8t. Louis, appellant was indicted for murder in the first degree for shooting and killing one, Clementine Manning, with a pistol, in the •city of St. Louis on August 4,1890. He was tried and
Motions for new trial, and in arrest of judgment were filed in proper time, and were overruled. The •case is brought to this court by appeal.
One, Earnest Alterange, summoned as a juror, stated on his voire dire that he could not read and write the English language, and, on the challenge of the state, was rejected, over the objection and exception of appellant. One, Charles J. Scott, summoned as a juror, stated on his voire dire that he had no prejudice against the prisoner; had never heard of the case, and could go into the jury'box without any prejudice against the prisoner, and listen to the evidence, give it its proper weight, and that if reasonably satisfied that defendant was insane, would' find him not guilty. Appellant’s challenge to this juror was overruled.
The evidence tended to show that deceased and her sister lived together on the first floor of a house in the city of St. Louis; that deceased and appellant had once lived together in illicit relation, but that they had quarreled and separated and that he had not called on her for over a year. On the fourth of August, 1890, about noon, deceased had been to market and was on her way home when appellant, who was in a buggy, followed' her to her house. He got out of the "buggy and went into the house with her. ' He shook hands with her sister, who was in the room at the time, and sent her to a neighboring saloon for beer; she was gone but a few minutes, and on her way back she heard several pistol shots, and when she got in the house found deceased lying on the bed in great agony, bleeding, and saw appellant leaving' the house by way •of the front door with a pistol in his hand.
The article of the constitution referred to simply guarantees to every one the right of trial by jury, nothing more. It does not in any way undertake to prescribe the qualifications of jurors in the city of St. Louis. If there was no statute defining the qualifications of jurors in the city of St. Louis, then we concede that it would have been the exercise of doubtful authority for the court to exclude a person, possessing .other' necessary qualifications, from jury service over the objections of defendant because he could not read and write the English language. But we are relieved from any embarrassment of that kind in this case, as the qualifications of jurors are defined by section 9, supra, and Alterange, who was examined as a juror, came within its express provisions. The legislature had the same right to provide that one who cannot read and write the English language shall not be a qualified juror, as it had to say, that lawyers, doctors, clergymen and persous of different trades, occupations and stations in life' should not be qualified to sit on juries.
Section 3240, Eevised Statutes, 1889, provides that all proceedings and records in any court of record shall be kept in the English language, and section 4208 provides, that in the trial of criminal cases, the court must instruct the jury in writing. These provisions of the statute are mandatory, and when we consider that all of our proceedings in courts are kept in the English language; that the jury have the right to take the1 instructions of the court to their room when they retire to consider of. their verdict, it would seem to furnish a conclusive argument of the wisdom of the legislature in passing the act disqualifying persons as jurors who cannot read and write the language
The ruling of the court was manifestly correct, for the reason that when the witness was testifying as an expert on the hypothetical case put to him, he was required to give his opinion .as to the condition of defendant’s mind at the time he committed the homiicide, based mainly on facts proven to have occurred, when, while in giving his opinion as to the condition of defendant’s mind at the time he made the personal examination, he was doing so, based on what occurred afterwards, and was really no evidence, if so, very little, as to the condition of defendant’s -mind at the time of the homicide. Mr. Rogers, in his work on expert testimony, page 75, quotes with approval from State v. Fetter, 25 Iowa, 75, as follows: “But if a physician visits a person, and from actual examination or observation becomes acquainted with his mental condition, he may give an opinión respecting such mental condition at that time — that is, he may, under such circumstances, state to the jury his opinion as to the sanity or insanity of the person at the time when he thus observed or examined him.”
In the case of State v. Bay, 53 Mo. 349, Judge Sherwood, in delivering the opinion of the'court, says: “In the State v. McLaughlin, 27 Mo. 111, this court adopts, with most cordial approval, the rules as
This evidence could only have been material for the purpose of contradicting the witness, Mollie Green, and comes within the rule laid down by the authorities above cited. It could not have produced a different result in the trial, because defendant admitted the killing, himself, on different occasions and to different persons.