Napton, J.
The defendant in this case was convicted of murder in the first degree. The evidence and instructions are not preserved in the record, and the only points presented for our consideration are two :
j. competency op formed™0 OWNI0N' First. The admission by the court on the panel of jurors of two persons, who, on their voir dire, admitted that they had formed an opinion from rumor, but stated that they could give a fair and impartial verdict in the case, regardless of such opinion; that they had no prejudice or bias [290]*290against the prisoner, and would be governed by the testimony. One of the jurors further said that it would take evidence to remove the opinion thus formed. The court overruled the objections, and the defendant’s counsel excepted. This point has been considered and decided at the present term in the case of the State v. Core, 70 Mo. 491, and the previous cases referred to and reviewed. I may add that, in the State v. Davis, 29 Mo. 392, the precise words used by one of the jurors in this case, “ that it would require evidence to remove the opinions they had entertained,” were also used by the jurors in that case, who were pronounced by this court competent. We regard these decisions as settling the law in this State.
2. criminal law : yrathSuiídernsixteen' The second ground upon which we are asked to reverse the judgment is the refusal of the court, after conviction, sentence the defendant to imprisonment *n the county jail, it having been found by the court that he was, at the time of committing the murder, under sixteen years old. The statute on which this, motion is founded is as follows: “ Whenever any person under the age of sixteen years shall be convicted of any felony, he shall be sentenced to imprisonment in a county jail, not exceeding one year, instead of imprisonment in the penitentiary, as prescribed by the preceding provisions of this law.” This section seems capable of but one construction, and that is to require imprisonment in a county jail as a substitute for imprisonment in the penitentiary, where sucb offenses as were punishable by imprisonment in the penitentiary have been committed by a youth under sixteen. A felony punishable by death is not within tbe letter or meaning of the statute. The judgment must be affirmed. A majority of the court concur.
Henry and Hough, JJ., dissent. Free access — add to your briefcase to read the full text and ask questions with AI