State v. Robertson

71 Mo. 446

• Court: Supreme Court of Missouri
• Decided: April 15, 1880
• Status: Published

Opinion

Henry, J.

i. jury: waiver of statutory privilege. No bill of exceptions, nor anything purporting to be a bill of exceptions, was filed in the cause, and we can, therefore, consider only such . „ . ,, , errors, if any, as appear m the record proper. The defendant was indicted for burglary in the first degree- and grand larceny. In criminal trials the State, in all cases punishable by imprisonment in the penitentiary,“not less than a specified number of years,” is entitled to challenge peremptorily six, and the defendant twelve jurors. 2 Wag. Stat., § 4 p. 1102. The punishment prescribed for burglary of the second degree, is punishment in the penitentiary not less than three years. Wag. Stat., § 18 p. 455. The State, therefore, was entitled in this case to six, and the accused to twelve, peremptory challenges. 2 Wag. Stat., § 7 p. 1102, provides that: “There shall be summoned and returned in every criminal case a number of qualified jurors equal to the number of peremptory challenges, and twelve in additionand no party shall be required to make peremptory challenges before a panel of such number of competent jurors shall be obtained.”

The record shows tha't at the April term of the Worth circuit court, defendant answered ready for trial, and the court ordered a jury of twenty-four men to be summoned,, from which panel twelve were selected, empaneled and sworn to try the cause. Thirty were necessary to compose-a legal panel'of jurors in this cause, and the court erred in ordering a less number to be summoned. But the defendant made no objection, and is to be regarded as having waived the right to the statutory number. State v. Waters, 62 Mo. 196. Defendant’s counsel contends that the defendant could not waive this right; but it will be found on examination of the adjudications that it is a constitutional and not a statutory right, to which that doctrine is applicable. In The State v. Mansfield, 41 Mo. 474, relied upon by counsel, by consent of defendant eleven jurors tried the cause, one having been discharged in consequence of sickness, and the court reversed the'judgment, on the express ground that it was a waiver of a constitutional right, remarking that, “ Whenever there is a constitutional guaranty of the right of trial by jury, the jury must be composed of twelve men.” But our reports abound with cases in which it hats been held, that a mere statutory privilege or right may be waived by the defendant. State v. Waters, 62 Mo. 196. Nor is there anything in this case making the doctrine of that of the State v. Davis, 66 Mo. 684, applicable here. The defendant was-not asked, in the presence of the jury, to consent to a less number of jurors on the panel, from which the trial panel was to be selected, than the statute required, but, when the case was called for trial, the court ordered a jury of twenty-four men to compose the panel, from which a jury to try the cause was to be selected, to which the defendant made no objection. In The State v. McCarron, 51 Mo. 28, cited by counsel, the defendant objected to the order of the court at the time,' and that fact distinguishes that from this case.

2. practice: over’tiip'rocords of the court. . The record affirmatively shows that the defendant was present throughout the trial, and there- is nothing in the P(>lnt that the entries were made after the motions for a new trial and in arrest were fi]e,p Jtwasat’the same term of the court. It was not an amendment nunc pro tunc, and the court was authorized to order such entries, although there was nothing of record by which an amendment nunc pro tunc could have been made at a subsequent term. It is the duty of the court to see that the clerk makes all proper entries during the term, and it has authority, during the term, if any have been omitted, to require the clerk to make them. This doctrine is too well established to require any citation of authorities to support it. There being no bill of exceptions in the transcript, we cannot notice the instructions complained of. The judgment is affirmed.

All concur.