State v. Burns

85 Mo. 47

• Court: Supreme Court of Missouri
• Decided: October 15, 1884
• Status: Published

Opinion

Shebwood, J.

The defendant was indicted for the crime of robbery, and being tried, was found guilty, and his punishment assessed at ten years’ imprisonment in the penitentiary. As the evidence upon which the conviction was founded, is not preserved, the only point for consideration is the denial, by the court, of the defendant’s motion for a new trial, based upon the remark made by Tacke, after he and others had been sworn on their voir dire, and, having answered satisfactorily, were awaiting the completion of the panel of thirty-four, from which the jury were to be drawn, when Tacke made this remark: “ There is a living for every one in this country, and all these thieving sons of l>-s ought to be sent up.” This remark was unknown to counsel of defendant until after the trial was over, and forms the ground for the motion for a new trial.

The expression, or the existence of bias, or prejudice against crime constitutes no cause of challenge. Davis v. Hunter, 7 Ala. 135; Williams v. State, 3 Kelly 453 ; Albrecht v. Walker, 73 Ill. 69 ; Kroer v. People, 78 Ill. 294. Besides, although the remark of Tacke was riot heard by defendant) s counsel, non constat, but that it was heard by defendant himself. If it was heard by •defendant himself, and constituted any ground of objection to Tacke, then defendant was guilty of inexcusable negligence in not communicating the fact to his counsel, s© that the proper steps could be taken. As there is no ■evidence preserved in the record; as it does not appear in what connection the words in question were spoken; .as every presumption attends the acts and doings of a •court of general jurisdiction; as a party who asserts that error has been committed, must prove it, we find nothing in the record, taking it as a whole, to warrant a reversal of the judgment, and so we affirm it.

All ■.concur.