State v. Grate , 68 Mo. 22 ( 1878 )

Sherwood, C. J.

— Defendant, indicted for murder in the first degree, was, upon trial had, convicted of manslaughter in the second degree, and comes here alleging divers errors. Owing to the conclusion we have reached, after a careful examination of the record, we have deemed it unnecessary to give expression to our views in detail respecting many of those errors, since in the view a majority of the court have taken,-the cause must be retried, and since, also, we regard the trial of the defendant as having been, for the most part, very faiily conducted, and the law, in the main, correctly administered. In one particular, however, to which we will presently advert, my associates think prejudicial error was committed.

1. ketuen op mDICTMENT INTO coeet.

I. As to the preliminary objection urged against the indictment that it only bore the indorsement “ A true bill, IT. A. Stewart, foreman. Eiled October 7th, 1875, X). N. Lapsley, clerk. We have this to say : That a similar objection was decided adversely to the objector in The State v. Pitts, 58 Mo. 556. It would be strange indeed if the indictment should be rendered invalid by the failure of the clerk to make an entry respecting the presentation of the indictment by the graud jury in open court when the statute, 2 Wag. Stat., sec. 1, p. 1086, expressly forbids the clerk, where a felony is charged, from making any entry on the minutes or records of the court in reference to the indictment, unless the defendant is in custody or on recognizance. The fact that defendant was under bail in the same court, charged by indictment for the same offense, with murder in the second degree, does not alter or vary the statutory inhibition because the indictment under which defendant was tried charged Matthew Grate also with the murder, and it does not appear that he was either on bail or in custody.

The statute, 2 Wag. Stat., sec. 21, p. 1081, provides that, “indictments found and presentments made by agrand jury shall be presented by their foreman, in their presence, to the court, and shall be there filed and remain as records of such court.” It is out of the power of the clerk, by his remissness, to balk the action of the grand jury. The indictment became a record of the court when returned by the grand jury in accordance with the statutory provision afiove noted. This was so ruled in The State v. Clarke, 18 Mo. 432. In that case only the usual indorsement was made on the indictment by the foreman of the grand jury, but it was held that the indictment on its presentation by the grand jury became ipso facto a record of the court, and that the court should have ordered the clerk to indorse the time it was filed nunc pro tunc. There was no such difficulty to be obviated in the case at bar, because the clerk had indorsed upon the bill that it was “ filed,” and this, in connection with the indorsement by the foreman, showed, that it had been “ returned” by the grand jury in open court. The State v. Clarke, supra. In Baker v. Henry, 63 Mo. 517, in respect to the report of an administratrix, it was remarked: “ The mere indorsement by the clerk, on the paper, is not the sole constituent element of filing that paper; for in legal contemplation the presentation and delivery of the paper to the court or officer, is the filing which dates from its receipt by the clerk and lodgment in his office, although the clerk’s indorsement is the highest legal evidence of the filing, and that indorsement being merely ministerial, is amendable at common law.” In that ruling we followed the authority of State v. Gowen, 7 Eng. (Ark.) 62, in regard to an indictment which the clerk had failed to indorse, “filed.” We have been thus particular respecting the point under discussion, because that point is brought to our attention again and again, at almost every term of the court. There was no error on this point committed by the court below.

2. absence op trial.

II. Nor do we think the court erred in regard to the matter of the absence of the defendant during a portion of the argument on the part of the prosecution. The record shows the presence of the defendant throughout the trial and at the rendition of the verdict. Whether it would be permissible to contradict these record recitals by affidavits and show thereby, as was attempted, that defendant was absent for a brief period during the conclusion of the argument on behalf of the State, need not be discussed, as it does not appear that defendant’s absence was more than momentary, and by defendant’s own affidavit it is only shown that the prosecuting attorney “ had begun his final argument to the jury ” when the defendant returned. In the absence of anything in the affidavits to the contrary, we shall not assume that defendant was prejudiced, or that any substantial portion of the concluding argument was made before defendant’s return after recess. He who alleges error must prove it.

a . „„„ guilty. :

III. Although there was no formal arraignment of the defendant, yet the record shows that he pleaded not guilty to the indictment, and this answers the objection on that score. The State v. Braunschweig, 36 Mo. 377; The State v. Saunders, 53 Mo. 234.

4 evidence oe reputation.

IY. We come now to the point which my associates think must accomplish the reversal of the judgment. It this : Testimony as to general moral character and general reputation of defendankas a moral man and peaceable, law-abiding citizen in -the neighborhood in which he lived, was excluded, because the witnesses who had known the defendant for years were only able to state, as a reason for answering, that his reputation in those respects was good, that they had never heard it discussed or questioned. While it is true that the usual formula as to such matters is to inquire if the witness knows the general reputation of the person in question, and what that reputation is, 1 G-reenl. Ev. 461; yet the hackneyed and stereotyped mode of answering such inquiry need .not always be pursued. Frequently the highest evidence which can be offered in this regard is of that negative character which the court below, unwarrantably,. as we think, excluded. That reputation may with justice well be called good which no slanderer has ever ventured to even so much as question. A blameless life, oftentimes, though not always, gives origin to such a reputation. But when it can be said of a man by those well acquainted with him, that they never heard his reputation, as to truth and morals, discussed, denied or doubted, it is equivalent to passing upon him the highest encomium. The authorities abundantly establish that the person testifying need .not base his means of knowledge on what is “generally said” of the person whose character is in question, but may base his knowledge of the reputation of such person on evidence of' the negative nature above noted. Lemons v. State, 4 W. Va. 755; Gandolfo v. State, 11 Ohio St. 114; C. J. Cockburn, in Rowten’s case, L. & C. C. C. vol. 1, 536; Kelley’s Crim. Law, § 241.

Y. My individual opinion of the point under discussion is, that although error was committed by the court in excluding the testimony referred to, yet that such error may be said to have been neutralized by the testimony of two witnesses, Hill and Grate, which was received without objection, who both testified to the good character of defendant as being peaceable, &c., and whose means of knowledge rested on precisely the same foundation as that of the two witnesses whose testimony was excluded, namely, that they, though living in defendant’s neighborhood, had never heard anything derogatory to his' character, or that character talked about. The majority of my associates are, however, of opinion that the'error was of such a prejudicial nature as to warrant a new tira!, and so we reverse the judgment and remand the cause,

in which reversal all concur except myself.

Reversed.