230 Mo. 647 | Mo. | 1910
The prosecuting attorney of Buchanan county on the 30th day of January, 1909; filed an information with the clerk of the criminal court of that county charging the defendant, David Wilson, with a felonious assault with intent to kill upon Frederick Bolsom. Upon a trial the defendant was convicted of a common assault and his punishment assessed at a fine of $100 and imprisonment in the county jail for the term of six months.
Motions for new trial and in arrest of judgment were filed, overruled, and judgment pronounced upon the verdict. The defendant then prayed an appeal, which was granted by the court to the Kansas City Court of Appeals. The Kansas City Court of Appeals at the March term, 1910, ordered the cause certified to this court for the reason that the offense charged was a felony, and therefore within the appellate jurisdiction of this court, and the cause is now before us for decision.
In appellant’s brief but two alleged errors of the trial court are relied upon for a reversal of the judgment, and we shall set out in this opinion only such parts of the record as are necessary in passing upon the errors thus assigned.
First. Appellant complains of error in instruction numbered 7 given by the court of its own motion. This instruction is as follows: “In determining as to the guilt or innocence of the defendant, you should take into account the testimony in relation to his character as shown by the evidence, and you should give
This instruction is in form as approved in a number of cases by this court, and no good reason has been advanced why we should now enter upon a reconsideration of the question as to whether it is a correct statement of the law upon the subject of good character. [State v. Darrah, 152 Mo. 522; State v. Cushenberry, 157 Mo. 168; State v. Wertz, 191 Mo. 569.]
Second. In the seventh ground of the motion for a new trial it is alleged that one of the jurors named Freeman had been convicted of a felony, and had not received a pardon restoring his citizenship, and therefore that he was not qualified to sit as a juror in the case; that by answering in the negative on his voir dire if he knew of any reason why he could not sit as a juryman in the case and give defendant a fair and impartial trial, the defendant was thereby deceived and misled as to his qualifications.
No affidavit of either the defendant or his counsel was filed showing when the alleged incompetency of juror Freeman was discovered, nor was any affidavit filed in support of the facts stated in the said seventh ground of the motion for a new trial. On the hearing of the motion the. defendant offered evidence tending to prove the facts alleged in the said seventh ground thereof. The court sustained an objection to the evidence thus offered and the action of the court in refusing to permit the defendant to prove such facts is now assigned as error.
Passing over all questions of practice and the rules of the trial court as to the manner in which the de
This court will take judicial notice of the fact that article 4, chapter 64, Revised Statutes 1909, entitled, “Juries in Counties Containing Cities of One Hundred Thousand and Less than Pour Hundred Thousand Inhabitants,” was in force in Buchanan county at the time of the trial of this cause. Section 7327 of that article provides that certain persons shall not be permitted to serve as jurors, and the seventh clause thereof is as follows: “Any person who has been convicted of felony.”
In the ease of Pitt v. Bishop, 53 Mo. App. 600, a case appealed from Buchanan county, the court had before it for- construction the Act of 1891 relating to juries, the eighth section of which was identical in its language with section 7327, supra. Discussing the statute thus before it, the court, at page 605, said: “Section 9 of the act provides that any party may challenge a juror for cause for any reason mentioned in section 8 of the act, and also for any cause authorized by the laws of the State. But there is no provision in the act
We hold that the Court of Appeals correctly interpreted the statutes before it, and under the law as construed in the foregoing cases the trial court did not err in refusing the defendant a new trial because .of the incompetency of the juror, even though that ground of the motion had been supported by proper and sufficient affidavits.
The Attorney-Oeneral urges in his brief that the motion for a new trial was filed more than four days after the verdict was returned, and therefore only the record proper is now before this court for review. While this contention finds support in the record, yet because of some confusion and uncertainty of dates as shown by the transcript, we have given the defendant the benefit of all exceptions preserved in the motion for a new trial and have considered the case not only upon the two errors assigned, but upon the entire record, and finding no error therein the judgment is affirmed.
