State v. Hultz

Gantt, P. J.

The defendant was, indicted for murder in the first degree at the October term, 1888, of the Boone county circuit court. He was tried at the April term, 1889, and convicted of murder in the second degree, and his sentence fixed at ten years in the penitentiary. The errors assigned are, principally, that the court erred in setting aside the sheriff and coroner of the county and appointing two citizens of the county elisors to summon the jury and perform all the other acts, incumbent upon the sheriff in the trial of the cause ; in permitting J. T. Rowland to serve on the jury of forty, and on the panel of twelve finally selected; in refusing to permit Akeman to serve as juror; refusing to permit the defendant to answer the question put to him by his counsel to state his purpose or intent in shooting the deceased, Vawter, and in permitting the jury to attend in the charge of the sheriff the lecture of Rev. Sam Jones, on the subject, “ Get there" Considering these in the order in which they occurred, and appear in the record, we will first inquire into the propriety of the court’s ruling in appointing elisors in lieu of the sheriff and coroner.

The power to appoint elisors to select the jury where the sheriff was party to the suit or was of kin to the parties, or was prejudiced, was well settled at che common law. Bacon’s Abridgment, title Juries “E,” et seq. The authority given our courts to appoint elisors is found in section 1038, Revised Statutes, 1879, section 3244, Revised Statutes, 1889, and is as follows: “Where there is no sheriff or other ministerial officer qualified to act or where they are interested or prejudiced the court * * * may appoint one or more persons to execute its process and perform any other duty of such officer, who shall be entitled to such fees for their services in each cause as are allowed by law to sheriffs in like cases.”

*49 The contention of the defendant is that the court committed error in not requiring morn evidence of the partiality and prejudice of the sheriff and coroner than the affidavit of the prosecuting attorney. It would seem that under our system of government, where the people elect their own officers, that no duly chosen officer ought to be deprived of his office save for the gravest reasons. This is true, because the people have reserved to themselves the right to name their officials and have not, save-in exceptional cases, left to any one man the power of selecting them, and after a man is duly elected to an office he is entitled to its honors and emoluments, and, when a citizen is to be deprived of his life or liberty, one’ of his safeguards is that it can be’ done only by an officer duly elected, and who is under the obligation of his oath of office and a sense of responsibility to the public which elected him. On the other hand, the common law recognized that it would often happen that the sheriff or other ministerial officer of the court would be related to the parties to a suit or be himself interested in the suit, or be by reason of his prejudice or bias an unfit person to select a jury; and as it was of the highest importance that the jury should be free from all suspicion of unfairness or prejudice it could not be tolerated that an interested or prejudiced official, who by reason .of his position might insidiously poison the jury in favor of one, and against the other, suitor, should have the power of selection of the jury, the courts invariably asserted the right upon a proper showing to appoint elisors.

The statute does not prescribe how the court shall ascertain the prejudice of the sheriff, but it is left to the discretion of the court in what form the evidence shall be presented, and of course it is for the court to say when it is satisfied. In this case the court was satisfied with the affidavit of the prosecuting attorney. It must be borne in mind that the “ nisi prius ” judge lives in the circuit in which he presides. He knows his *50 prosecuting attorneys, and his sheriffs. He might be satisfied as courts often are, by the unsworn statement of a reputable lawyer or officer of his court, whereas he might not be willing to accept the sworn statement of many others. These matters must bé delegated to some one, and the law has confided it to the circuit judge. Of course, his action is subject to review, if it shall appear arbitrary and unjust; but in this case no suggestion is made that the elisors were not suitable and discreet persons, nor is there any charge preferred that any juror summoned was selected through partiality or prejudice of the elisors, or were themselves unfit to serve as jurors. The whole question is narrowed down to the one consideration that it was error to set aside the sheriff and coroner, and that the law will presume injury resulted to the defendant. But it cannot be maintained that where the law, as in this case, vests the discretion in the court, that because it does not require a certain kind and quality of evidence to establish a fact, that his act is necessarily arbitrary and wrong. While it is generally understood that a judge should know nothing until it is brought to his attention according to the mode of procedure adopted for the government of his court, yet much deference is shown the trial courts because of their familiarity with the witnesses and jurors and suitors with whom they are brought in contact.

Section 4156 provides for changes of venue in criminal cases and for the supporting affidavits, but it also declares that if the facts “he within the knowledge of the court or judge he may order the change without any formal proof.” The taking of testimony in the form of affidavits is not unusual or extraordinary. Changes of venue are awarded upon affidavit alone ; continuances are granted daily upon this form of proof; chancery causes were originally heard- in this way, almost wholly, and, upon consideration, it may be the learned judge wisely concluded that less prejudice *51 would result to this defendant by determining this application in this manner than by a hearing of witnesses orally. It will be observed that defendant made no offer of evidence to contradict the affidavit at the time, but contented himself with insisting that it was not sufficient. That, then, was the only, question before the court. His conscience and his judgment were to be satisfied, and he resolved in favor of the motion. Discretion, when applied to public functionaries, has been defined to be “a power or right conferred upon them by law of acting officially in certain circumstances according to the dictates of their own consciences uncontrolled by the judgment or conscience of others.” “ Whenever a clear and well-defined. rule has been adopted, not depending upon circumstances, the court has parted with its discretion as a rule of judgment. Discretion may be, and is to a very great extent, regulated by usage or by principles, which courts have learned by experience will, when applied to the great majority of cases, best promote the ends of justice, but it is still left to the courts to determine whether a case is exactly like in every color, circumstance and feature to those upon which the usage or principle is founded, or in which it has been applied.”

This court in State v. Leabo, 89 Mo. 247 , held that it was in the discretion of the circuit court to set aside the sheriff or not as the case appeared to him. We do not think there is anything in this record that shows that the distinguished judge, who tried this cause and who gave so many years of his life to an intelligent service of this state, was governed by any other than the purest motives and a wise discretion, and we accordingly hold there was no error in his ruling on this point.

The action of the court in refusing to grant the change of venue is assigned as error, but the evidence fully justifies the circuit court in refusing it.

The bill of exceptions discloses that, when the court was impaneling the jury, J. T. Rowland was *52 examined on his voir dire. As will appear from the statement accompanying this opinion, he was competent by all the decisions of this court, but it also appears that the defendant’s counsel made the point that he was not, and the stenographer reports the learned judge as saying “stand aside,” the usual formula for rejecting a juror. The record, however, discloses that when the challenges were all completed this man, Joshua T. Rowland, was one of the forty jurors found by the court competent to try the cause. His name was recorded upon the record of the court as one of those accepted by the court; his name was entered by the clerk upon the list handed the defendant upon which he should make his challenges; he was not challenged. The attention of the court was in no way directed to what the defendant now claims was its action. After all the challenges were exhausted by state and defendant, Joshua T. Rowland was left as one of the twelve jurors.' Still the defendant nor his counsel made any suggestion that he had been rejected. The court by its record solemnly finds he is a competent juror; his voir dire discloses he was competent; no challenge is made though every opportunity is given to see and know that he is one of the j ury. .

Over, against all of this unambiguous record of the court’s understanding, stands the two words “stand aside” found in the stenographer’s notes. Evidently, the juror did not hear the order or understand it, because it would be presuming too much to suppose that any citizen would knowingly put himself in contempt of the order of the court. As it is, it is left to ns to interpret the record as we find it, and we conclude there is but one construction consistent with experience, reason and common sense, and that is, that the stenographer inadvertently put the words “stand aside” in the mouth of the judge. To find otherwise would be to contradict a clear, explicit statement of the record proper, that was open to objection and correction ; it *53 would go far to show the judge, one of the oldest and ablest that ever graced the bench of the state, was ignorant of the ordinary qualifications of a juror; and incidentally it might convict counsel of knowingly dealing unfairly with the court, and their high standing forbids any such suggestion. So we think it is evident they have found this fact in the bill when they come to make out their exceptions. The objection to the juror Rowland must be overruled.

It is next contended that the juror Akeman was competent and the court improperly excluded him. This juror on his voir dire stated he had heard the evidence on the preliminary trial; read a report of the evidence in a local newspaper and had formed an opinion therefrom. He was incompetent, and the court properly so held. His opinion was not based on mere rumor or newspaper report. It was founded on sworn testimony. Liberal as our statute is, it is not intended to have for jurors those who have heard the evidence and formed their opinion on that. It is very different from one hearing a rumor or reading a mere newspaper account and feeling that he is free to judge upon sworn testimony. “ Where the venire man has formed an opinion, either from his own knowledge or from conversing with witnesses to the transaction, or from having heal’d their testimony on the trial of the cause, he is subject to be challenged for cause.” State v. Walton, 74 Mo. 270 .

Again defendant urges that the judgment ought to be reversed because the court refused to let him state with what intent and purpose he fired the pistol at Yawter, the deceased. There can beno doubt thatunder our practice the defendant had the right to testify to every fact and circumstance connected with the difficulty between himself and deceased, and to every circumstance and fact that tended to throw light upon the movements and motives or the parties to this tragedy on the day of the fatal meeting.

*54 There can be no such thing as a felony without a criminal intent. It is the intention with which an act is done that stamps it as lawful or criminal. ‘ ‘ In considering whether a defendant charged with doing a certain act did so with a criminal intent, his prior and accompanying acts are all to be considered.” State v. Musick, 101 Mo. 260 . Now in this case, the defendant himself went on the stand voluntarily and testified to three distinct shots that he fired at deceased. He gave a minute account of his meeting deceased on their way home from Columbia ; of the conversation that ensued ; of the beginning of the difficulty; of deceased’s effort to strike or cut him; of his drawing his revolver and Ms aim to hit him under the shoulder ; he testified “he was not shooting at random ; was not shooting for fun; that he was shooting at him.” There can be no pretense then that it was anything but an intentional shooting with a deadly weapon at a vital part. There was nothing accidental about it.

What answer could defendant have made that would have benefited him. He could not have said, he did not intend to hit deceased. He had already sworn he shot three times with the intention of hitting him. What then? He might have sworn he did it in self-defense ; admit he would have done so, could it have added anything to the detailed account of the meeting in which he had made the deceased the aggressor throughout. If the jury believed his evidence they must have found he acted in self-defense, and if he did he had a perfect right to shoot deceased and shoot with a purpose of killing him ; but his simple declaration that this was his sole purpose could not have added anything to the facts already detailed. The court might very properly have permitted him to answer the question, but its refusal where no harm can result will not justify a reversal of this cause.

In regard to the complaint that the jury were permitted to go in charge of the elisors, and hear Rev. Sam *55 Jones’ lecture, there is not a word of evidence in the record showing or tending to show they did anything of the kind. This is an appellate court, and we cannot review matters not in the record.

The learned counsel in their brief have complained in general terms of the instructions. They have not pointed out any particular instruction that was erroneous, but in a general way they assert these instructions invade the province of the jury, in that they comment on the testimony. We have read all of the instructions. They present a clear and fair statement of the law of the case, and are just to the defendant. We find no error in the record and it follows the judgment of the Boone circuit court must be affirmed.

All concur.