State v. Robinson, 117 Mo. 649 (Mo. 1893)

SheewoOd, J.

Numerous errors are assigned as grounds for reversal of the judgment, which will now be considered.

I. And first as to the objection that certain incompetent jurors were placed on the list and on the panel that afterwards tried defendant. In State v. Hultz, 106 Mo. 41, a juror was ruled incompetent who had heard the witnesses testify at a preliminary examination, and had read a report of the evidence in a local newspaper. In the present instance the jurors in question had read in local newspapers what “purported to be” the evidence taken at the coroner’s inquest, and what “purported to be” the confession made by defendant to the sheriff.

Our statute touching the qualification of jurors is contained in section 4197: “It shall be a good cause of challenge to a juror that he has formed or delivered an opinion on the issue, or any material fact to be tried, but if it appear that such opinion is founded only on rumor and newspaper reports, and not such as to prejudice or bias the mind of the juror, he may be sworn.” This statute is short, plain and easily obeyed: First. If the juror has formed or delivered an opinion, the statute disqualifies him; but, second, if such opinion be “founded only on rumor or newspaper reports,” he is not disqualified, provided his opinion “is not such as to prejudice or bias the mind of the juror.”

In Bryant’s case, 93 Mo. 273, the jurors challenged had read “the report of the testimony of the former trial as published in the newspapers mentioned, and substantially as contained” in that record. When this is the case, it seems quite clear that a proposed juror would be incompetent; for surely no well foupded dis

tinction can be taken between being present when testimony is delivered orally in a cause, and reading the same testimony taken down and accurately published in some newspaper; in a word, there is no difference between the hearing ear and the seeing eye. This view is fully sustained by State v. Culler, 82 Mo., 623, where it was ruled that one who had read as originally written or printed in a newspaper the evidence taken before the coroner and formed an opinion therefrom is disqualified from serving as a juror in that cause. Other authorities holding the same view will be found in Bryant’s case, supra, loc. cit. 284 et seq.

But the trouble in the case at bar is that it is not made to appear that the reports read in the local papers, were either a literal or a substantial report of the confession of the defendant as contained in the present record. This being the case, such printed statements must be regarded simply as “rumors and newspaper reports,” and as the jurors said they were without bias or prejudice, they were competent under the statute already quoted, and hence objections to them were not well taken.

II. There was no objection made or exception saved to the introduction of the confession of the defendant in evidence, and it was too late to raise the point in the motion for a new trial, or in this court. Aside from this, the testimony already given shows in a very clear manner that the confession was properly admitted and was taken in circumstances fully authorized by the following authorities: State v. Patterson, 73 Mo. 695; State v. Phelps, 74 Mo. 128; State v. Hopkirk, 84 Mo. 278. We reaffirm the principles therein announced.

III. • The instructions given on behalf of the state, were in usual form as to murder in the first and second degrees| confession made by defendant; good charac

ter of defendant and as to reasonable doubt. The instruction on the last topic is in substantially the same form as was approved in State v. Nueslein, 25 Mo. 111, and that form of instruction has been generally followed since then. It is urged that the jury should have been told what a reasonable doubt was, and that it should have been explained to them. But this was unnecessary. It is difficult to explain simple terms like “reasonable doubt,” so as to make them plainer; 1 Bishop on Criminal Procedure, sec. 1094. Every attempt to explain them renders an explanation of the explanation necessary.

On the part of defendant were given the following instructions:

then this is a circumstance which the jury ought to consider in connection with all the other evidence in the case, in mating up their verdict.

monís as well as the facts and circumstances given in evidence. In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any material fact, you are at liberty to reject all, or any portion of such witness’ testimony.”

Considering these instructions in connection with those given on behalf of the state, they set the matters for investigation before the jury in a fair light.

IY. It is claimed that an instruction should have been given similar to the one approved in Moxley’s case, 102 Mo. 374, to the effect that where the prosecution relies on circumstantial evidence alone, that then, etc., etc., II. loc. cit. 388. Such an instruction was inapplicable to the facts in this case, because here although there was some circumstantial evidence which strongly corroborated the confession of defendant, yet the latter was positive testimony, a solemn admission by the defendant of his guilt. As to whether he made that confession was solely the province of the jurors to determine.

Y. Another instruction it is said the court ought to have given, and that was to the effect that if a party accused fail to testify, that such failure shall not create any presumption against him. There was no error in refusing such an instruction. Section 4219, Revised Statutes, 1889, is the one relied on to sustain this view; but the concluding words of that section provide that such failure to testify shall not “be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” If the court had given such an instruction, it would have disobeyed the spirit if not the letter of the law.

YI. It is assigned as error that the court permitted Hyatt to testify that there were blood stains on defendant’s overcoat, when he found it between the mattresses on defendant’s bed. There was no objection made by

defendant’s counsel to the introduction of this evidence. Besides, Hyatt of his own volition qualified his first statement by saying “they are what I would have taken tobe blood when I seen them.” It was not necessary for Hyatt to be an expert in order to testify what the stains on the overcoat “looked like.” Frequently the opinion of a witness as to the appearance of an object he has seen is the best and only evidence attainable; nevertheless, it is competent. State v. Parker, 96 Mo. loc. cit.* 393, and cases cited. Because Hyatt was not an expert, defendant’s counsel moved the court that the latter portion of his testimony, just mentioned, be stricken out.

There is no doubt that the rule is that where evidence is improvidently admitted, though without objection, that such evidence may be excluded by an instruction, or stricken out on motion. Two -cases in this court attest the correctness of this position. State v. Cox, 65 Mo. loc. cit. 32; State v. Owens, 79 Mo. loc. cit. 631. This is the prevailing rule elsewhere. 2 Thompson on Trials, sec. 2354. But notwithstanding this, the ruling of the trial court in denying defendant’s motion was correct for reasons already stated.

VII. It is likewise assigned as error that Q-ottschalk was permitted to testify as he did, that he did not sell defendant 'any tobacco on Sunday evening, nor did he keep his store open on Sundays. There was no error in this ruling. The telling of falsehood by persons suspected of crime about matters which are likely to lead to their detection is always competent. It shows their guilty fears and thus tends to show that their apprehensions have some foundation. Such fabrications are common amongst criminals, who thus seek to divert suspicion from themselves. State v. Dickson, 78 Mo. loc. cit. 449, and cases cited; Wharton’s Criminal Evidence [9 Ed.], sec. 751, and cases cited.

VIII. It is urged that the' verdict is unsupported by or against the evidence. This seems a singular position when considering the confession made by defendant, as well as the very cogent corroborating circumstances heretofore related. It is true that Dr. Small states as his opinion that the deceased was not stabbed at, or near the place where she was found, and that she was not dragged there, and he was also of opinion that the wound in her neck was inflicted after death, and yet he says he did not see the wound. He bases this opinion on the small amount of blood found on the ground at the locality where the body lay, but he admits that the flow of blood from such a wound would not be large, if “she (deceased) had too much of a shock.” But, however, this may, it belonged to the jury to say which theory they adopted and regarded as supported by the facts; this they have done by their verdict.

IX. It is also contended that the verdict of the jury is' against the evidence and the instructions of the court, for the reason that, even taking the confession of defendant as true, it lacks any evidence of deliberation. This claim is without foundation; the facts set forth in that confession show a deliberate killing with a deadly weapon, after an express declaration of an intention to kill, and this without apparent provocation or necessity. Wharton on Criminal Evidence [9 Ed.], secs. 736, 764; 1 Wharton on Criminal Law, sec. 381.

X. The last point for determination is whether the verdict was vitiated in consequence of juror Freeman A. Grlass having taken notes of the testimony during the progress of the trial; it is contended that it was. This point will be considered in several ways.

First. In the first place, in some of the states, statutory provisions sanction the taking of notes by jurors during the trial. 2 Thompson on Trials, secs. 2595 et seq.

Second. In the second place the authorities are divergent as to whether the taking of notes by a juror is such an act as has the prejudicial effect here claimed for it. 2 Thompson on Trials, sec. 2585, and cases cited.

Third. In the third place, where misbehavior of a juror is charged as having occurred during the trial, it must affirmatively appear that the party complaining thereof did not know of the fact before the jury retired to consider of their verdict. 2 Thompson on Trials, sec. 2620, and cases cited. This material fact is not disclosed in the affidavit filed, and the statement of it in the motion for a new trial is no evidence of its existence, as all our authorities show. If the complaining party knew during the trial of such misbehavior, it was his duty to call immediate attention-of the court to it, and not take his chances of a reversal based on such ground.

Fourth. In the fourth place, under our rulings, the affidavit or testimony of a juror is not received to gainsay or impeach his verdict. Of course, what a juror can not do directly, he can not do indirectly. The statement, therefore, in the affidavit of counsel, that the juror had stated since the trial that he took notes of the testimony while it was in progress, is wholly inadmissible for the reason stated and for the additional-reason that such statement would be but the most pronounced hearsay. 2 Thompson on Trials, sec. 2622. For these reasons there was no error in overruling the motion for a new trial based on the ground just considered.

Finding no error in the record, wé affirm the judgment and direct the sentence pronounced to be executed. State v. Pagels, 92 Mo. loc. cit. 317; Revised Statutes, 1889, sec. 4298.

All concur.