State v. McKinney

120 S.W. 608, 221 Mo. 467, 1909 Mo. LEXIS 151

• Court: Supreme Court of Missouri
• Decided: June 8, 1909
• Status: Published

Opinion

BURGESS, J.

The defendant was found guilty “of assault to do great bodily harm, without malice,” and his punishment assessed at a fine of one hundred dollars, under an information filed by the prosecuting attorney of Texas county in the circuit court thereof, charging the defendant with an assault with intent to kill. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed.

The defendant is not represented in this court. As no bill of exceptions was filed, no matter of exception can be passed upon by us, so that in passing upon this appeal we are necessarily restricted to what appears from thé record proper. Prom this it does not appear, as it should, that the jury was sworn to try the cause. It does show that a jury of twelve men were called, to try the case, that said jury did so, and returned a verdict finding the defendant gnilty of an fissault to do great' bodily harm, without malice, and fixing his punishment at a fine of one hundred dollars.

Among the first things required by the statute (See. 2627, R. S. 1899) to be done in the trial of a criminal case before a jury is that the jury be impaneled and sworn. This same question underwent full consideration, and the authorities were extensively reviewed by Gantt, J., in the recent case of State v. Mitchell, 199 Mo. 105, in which it is held that if the record proper in a criminal case fails to show that the jury was sworn to try the cause, the judgment will be reversed and the cause remanded. That case is decisive of the case at bar, and leaves nothing further to be said upon the subject. The judgment is reversed, and the cause remanded.

All concur.