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Sisters Eleonore and Rosine: Mary Eleonore Boyer and Richard Marshall | Rosine Elizabeth Boyer and George W. Rutledge, Sr.
Eleonore and Rosine's parents: Jean Baptiste Boyer & Maria Aurore St. Germain | Charles Boyer & Marie Madeleine Maurice dit Chatillon | Nicolas Boyer III & Dorothee Olivier | Nicolas Boyer II & Louise Payet dit St. Amour | Nicolas Boyer I & Marguerite Maclin | Etienne Boyer & Perinna Peineau |
Joseph St. Germain and Marie Josephine Josette Calvet (Parents of Maria Aurore St. Germain)
Joseph Antoine Calvet and Marie Josephe Therese Marechal (Parents of Marie Josephine Josette Calvet) | Nicolas Marechal and Marie Jean Illeret (Parents of Marie Joseph Therese Marechal and Antoine Marechal, siblings) | line continues with Antoine below
Jean Baptiste Maurice dit Chatillon & Marie Jeanne Corset (parents of Marie Madeline Maurice dit Chatillon) |
Francois Corset Dit Coco and Elisabeth Bienvenu (parents of Marie Jeanne Corset) |
Richard Marshall's parents: Benoist Marechal and Mayotte | Antoine Marechal and Mary Catherine Tabeau | Nicolas Marechal and Marie Jean Illeret | Claude Illeret and Simone Marie Martin (Marie Jean Illeret's parents) |
The original Supreme Court file is available for download from the Missouri Secretary of State Website.
Missouri Secretary of State Supreme Court Archives B514F05 (Box 514, Folder 05)
Nathaniel Holmes - Judge
Richard Marshall - Appellant
State of Missouri - Respondent
J.P. Vastine - Respondent Attorney
John William - Appellant Attorney
Cheryl Rutledge-Brennecke (descendant of Richard Marshall and Mary Eleonore Boyer)
and Liz Hiller Schulte (descendant of Richard Marshall and Elizabeth Garrett)
State of Missouri vs. Marshal Richard 1865 51415
State RP vs. Marshall AP [Note: rp=Respondent; ap=Appellant]
--Marshall murdered David Baker sentenced to be hung
S requested into ____
Murder d app [Note: Defendant Appellant]
No open exceptions
Holmes Wagner / Lordance ___
John T. Wilker
State of Missouri )
Washington County )
Be it remembered that on the 27th day of November A.D. 1863, there was filed in the Circuit Court of said County an indictment which is in words and ___ as follows to-wit:
State of Missouri )
In the Washington County Court November Term 1863 the Grand Jurors of the State of Missouri, now here in Court impaneled, sworn, and charged to inquire within and for the body of the County of Washington in the State of Missouri upon their oaths present that Richard Marshall late of the County of Washington aforesaid on the fourth day of September Eighteen Hundred and Sixty Three with force and arms at the County aforesaid in and upon one David Baker in the peace, when and there being feloniously, willfully, and deliberately, premeditatively, and of his malice aforethought did make an assault and that the said Richard Marshall with a certain knife which the said Richard Marshall in his hand then and there held the said David Baker in and upon the neck and throat of him the said David Baker, then and there feloniously, willfully, and deliberately premeditatively and of his own malice aforethought did
strike and thrust giving to the said David Baker then and there with the knife aforesaid in and upon the neck and throat of him the said David Baker. One mortal wound of the breath of six inches and of the depth of three inches of which said mortal wound the said David Baker on the fourth day of September, Eighteen Hundred and Sixty Three, at the County aforesaid of the said mortal wound died and so the jurors aforesaid upon their oaths aforesaid do say that the said Richard Marshall, the said David Baker in manner and form aforesaid feloniously, willfully, deliberately, and premeditatively and of his malice of afore thought did kill and murder against the peace and dignity of the State of Missouri
D le Furle Circ
Atty Pro Tem (Tempore)
Upon the back of which Indictment the following endorsements were made. State vs Richard Marshall Indictment for Murder. A True bill. G. B Cole Foreman. Witnesses: David N Baker, Catherine Baker, Martha Goff, Benjamin Hulsey, Wm H Baker, James Hogan, Jilson Yarberry, Dan G Yarberry, Jos. Bass, James Pratt, Dated Nov 27, 1863.
W.A. Matthews(?), Clerk
And afterwards at the November Term 1863 the following proceedings were heard in said cause
Plea of Not Guilty (in margin)
Richard Marshall )
Prisoner arraigned. Waived the reading of the indictment and enters the plea of Not Guilty and an affidavit of the Defendant the Cause is Continued
And afterwards at the May Term 1864 the following proceeding was had in said Cause To Wit:
Now at this day come the attorney for the state as well as the said Defendant in his proper person, who having been heretofore arraigned and entering the plea of Not Guilty, Now puts himself upon the County and the attorney for the state doeth the like. Thereupon come a Jury To Wit: James Bass, William Dill, William Smith, Joseph Myers, Archey Conway, Henry Knopf, Westley Joseph Conway, Edmond Boyer, John F. Miller, Thomas Maxwell, Henry G. Hicks, and Henry Beckett, twelve good and lawful men(?) who being duly elected and sworn will and truly to try the office joined
between the parties aforesaid and the evidence not being concluded. Court adjourned till tomorrow 9 o’clock Saturday May the 28th 1864. Court met pursuant to adjournment when the following proceeding was had.
Now at this day come again the parties aforesaid and also the jury aforesaid and the evidence being now concluded and the cause being argued by Counsel on both sides returned into Court the following verdict
Verdict of the Jury
To _____ We the Jury find the Defendant Guilty of Murder in the first degree in manner and form as charged in the Indictment. William Smith Foreman, WW Dill, JW Conway, Henry Knopf, Edmond Boyer, Henry C Beckett, James Bass, H. G. Hicks, John F. Miller, Joseph Myers, Archibald Conway, Thomas Maxwell
And at the same term, the following proceeding appears of record in said cause To Wit:
Sentence of the Court
Now at this day come again the Court and the said parties and the said being demanded at the court if he has anything to say why sentence of Death should not be passed upon him. Says nothing. Therefore it is considered by the court
That on the ninth day of July next between the hours of nine o’clock am and two o’clock pm of that day the said Richard Marshall shall be taken by the Sheriff of this County to some convenient place in the Town of Potosi in said County of Washington and that there on the day and between the hours of aforesaid he be hanged by the neck till he is Dead. It is further ordered that the Sheriff of this County to convey said Richard Marshall to the Jail of St. Louis County for safe keeping.
Motion for New Trial and Overruled
The defendant by his Counsel moved the Court to grant him a new trial in this cause which motion was by the Court overruled
Whereupon the Defendant filed his Bill of Exceptions and prayed an appeal to the Supreme Court which is granted by the Court. Which Bill of Exceptions are in words and figures as follows
Bill of Exceptions
Richard Marshall )
Indictment for murder in the Circuit Court of Washington County. May term A.D. 1864
Be it remembered that on the 27th day of May A.D. 1864 the above entitled cause was brought in for trial the prisoner being arraigned. Pleaded not guilty and put upon trial on a charge of murder in the first degree then and there the following proceedings were had. The Jury was summoned by the Sheriff by virtue of an order of the court whereupon the Circuit Clerk issued a venire directed to the Sheriff of Washington County of which the following is a copy
State of Missouri )
Washington County )
Richard Marshall )
In the Circuit Court the Sheriff is commanded to summon fifty (50) men as jurors in the above entitled cause to appear at the court house in the Town of Potosi at 9 ‘o'clock a.m. on Friday the 27th May(?)
William A Matthews, Clerk
Without affixing the Seal of the Court of the same that the Sheriff made no reason upon said Venire but brought into Court a list of names upon a slip of paper and the Jury was listed as the Sheriff had listed them as
as he summoned. The jury were not drawn by the ballot box but were called up four at a time and sworn and tried as to competency in their voire dire until Thirty Six declared by the court to be competent (by the court - these words appear to be crossed out) were selected.
In trying the competency of jurors on their voire dire the court propounded to one Henry Beard a juror the following interrogatories to wit:
Ques. Were you on the grand jury when Richard Marshall was indicted for murder?
Ans. I was not.
Ques. Do you know anything in reference to the murder of David Baker in Sept 1863?
Ans. I have heard it rumored or spoken of.
Ques. Have you ever heard any of the parties or witnesses speak about it?
Ans. Not that I know of.
Ques. Who have you heard talk about it?
Ans. I don’t know who I heard the rumors about it when it occurred.
Ques. Did you ever talk about it to any person who pretended to know the facts in the case?
Ans. I don’t think I did, they were just talking what they heard.
Ques. Have you formed or expressed an opinion as to the guilt or innocence of the prisoner
Ans. I have not expressed any opinion more
I don’t know that I have formed an opinion.
Now thinking that if the accounts I heard were true he was guilty.
Ques. Would the impression made on your mind prevent you doing the prisoner justice if the evidence should be different from what you have heard?
Ans. I think it would not
Ques. Have you any prejudice against this prisoner?
Ans. I have not.
Question by prisoner’s counsel
Did what you have heard about the case make any impression upon your mind of the prisoner’s guilt?
Ans. I cannot say that it did not.
The counsel then objects to the competency of said juror which objection was by the court overruled.
Thirty six jurors declared competent by the court being selected a jury of such men as follows:
William Smith the foreman, W.W. Dill, J. W. Conway, Henry Knopf, Edmund Boyer, Henry C. Bequette, James Bass, H.G. Hicks, John F. Miller, Joseph Myers, Archibald Conway, and Thomas Maxwell were elected and sworn to try the case. The circuit attorney then introduced the following witnesses on the part of the state:
Joseph Bass called and sworn upon the part of the state and testified as follows:
About the 4th of September last, David Baker, David N Baker and Richard Marshall came to my house. I had been from home that day. After I got home David Baker came there to my store. He had been drinking. After that Hogan, Marshall and David N Baker came by store. Hogan and William Baker left for home bout sun 1 ½ hour high about dark. David Baker, David N Baker and Richard Marshall left for home. David N Baker and Hogan, his brother in law, came to my house that night after a warrant for Marshall. I did not see the old man Baker after he was killed. David Baker lived about 2 1/2 miles from my house. From appearances was no ill feeling between David Baker and Richard Marshall. At one time Marshall said he had a settlement to make with David Baker for reporting him to the soldiers. The place where the old man was killed was in Washington County MO. It was from 2 to 2 ½ miles from my house to David Bakers.
When they started from my house they took one quart of whisky with them. David N Baker took charge of the whisky when they started.
Some time before that Marshall said he and David Baker had talked over their matters and he was satisfied that David Baker had been lied about and they both worked for me together and both seemed to be friendly.
Recalled. Richard Marshall bought and took away with him one dollar’s worth of coffee the night David Baker was killed.
James Hogan was then sworn in on the part of the State and testified as follows:
I had been with David Baker all the day he was killed. The next I saw him he was dead. We had just got in the house at David Bakers when David N Baker came and called me out. I asked him what was the matter. He said Marshall had killed his father which evidence was objected to by the counsel for the prisoner for the reason that it was improper evidence. The court sustained the objection holding that David N Baker’s statement was inadmissable. As soon as we could we went after the old man. It was dark we could hardly see the road and found David Baker lying on his back dead. When we found him we found two stabs on his side. Next morning where the old man lay it looked as if a good deal of scuffling had been done on our way when
he was killed. We met the mare that David N Baker had been riding that day, after we got there we found the saddle and bridle lying close to the old man. We found one or two grains of coffee on the ground.
The old man Baker was my father in law and David N Baker is my brother in law. A little over half way from his house and where the old man was killed we met the mare. She was a gray mare. She turned out of the road in the brush and passed us. I did not see any knife there that night. I saw the knife afterwards that he was killed with. There was blood on the knife. I did not see any bottle there that night. I heard something about a bottle of whisky being found on the ground where the old man Baker was killed. After we found the old man Baker was killed, after we found the old man Baker we went to Bass store, remained there about 1/2 an hour and then went back where the old man lay. We went and got a wagon and took the old man home. David N Baker, William Baker and myself. Benjamin Neelson is a son in law of the old man Baker. I saw someone have the knife the next day. The blade was broke about in the middle. It was a single bladed knife. It was David N Bakers. He had carried it for some time before that The girth of the saddle was cut
close to the saddle. I saw blood on the saddle before and behind. I saw a cut on the mare on the same side the girth was cut. David N Baker left home that day on the same mare with the same saddle and bridle. When he came home that night and called me out, he spoke loud in his usual tone of voice. He said the old man was dead.
James Pratt sworn for the state and testified as follows: I was a juror on the coroner’s inquest held upon the body of David Baker. I was on the ground where the old man was killed. We found one or two grains of coffee on the ground where the old man was killed, I saw a shirt produced on the inquest said to be the shirt that David N Baker had on the day his father was killed. There was some blood on one of the shirt sleeves. I saw the wounds and examined them. The cut on his throat was done from the right to the left side. There was but one cut on his side that I saw. On the ground where he was killed we found a piece of flesh with his beard on it. His throat was cut from ear to ear.
He was killed on Saturday. The inquest was held on the following Sunday. The first time I saw the old man after
he was dead was at his house. I saw a part of a knife. The cuts on the throat were _____ left cuts to the old man Baker was a very large man 6 feet tall I think.
Mrs Catherine Baker sworn for the state and testified as follows: Richard Marshall came to my house that evening that my husband was killed about 3/4 an hour after my son David N Baker came home and stated that my husband was killed. His hands and clothes were bloody.
Cross Examined. I am the mother of David N Baker. It was about 1/2 hour after dark when Richard Marshall came to my house. He did not stay but a short time. (repeat) He did not stay but a short time. My husband was brought home about midnight and I saw the saddle the next day. The girth of the saddle was cut. I did not see any knife belonging to David N Baker. I saw it after they found it. I don’t recollect of there being any blood on the knife when David N Baker, when he came home was a little under the influence of whisky. When Marshall came there he was very drunk he could not walk straight. David N lives about 1/2 mile from our house. He started home after midnight and came back after daylight next morning. I saw no blood on his shirt. He had on a home made
Simon O’Ferrel sworn for the State testifies as follows:
I saw Richard Marshall the night David Baker was killed. He came to my house after a warrant. There was a little stain of blood on his shirt sleeve near the wrist band.
Martha Goff sworn for the State testifies as follows:
I know the prisoner. On the 31st day of August dark. I heard Richard Marshall say he intended to kill the old man Baker. I met him by the side of our field. He had been drinking right smart. He commenced on me and said the old man Baker had been carrying news and made a fuss.
Cross examined. Where I met him was 40 or 50 yards from the house our side of the field. I was going home. I had been down in the field after plums. There is plenty of plums get ripe in August. I was in conversation with him some ten minutes. Marshall was under the influence of whiskey. He got between me and the house and would not let me pass. It was 3 or 4 months before that I have seen Marshall I think. It had been nine months since I had seen him to converse with him. It was at his house in the day time at his house. I have stayed all night at Marshall’s house.
I met Miss Isgriggs at Marshall’s house. I was not at Marshall’s house about 3 weeks before the old Baker was killed. I recollect of exchanging some wool in the Spring with Mr. Baker. I was sworn on the examination before Justice Bass as a witness against Marshall. I testified the same before him as I have here as near as I can recollect. I met Marshall and I was going to Boyers some five or six weeks before the old man Baker was killed. I did not sleep in any place the night I stayed at Marshalls. Marshall’s wife was about to be confined was the reason I was at Marshalls.
Jilson Yarbrough sworn for the State and testified:
I know the prisoner. Have known him for 4 or 5 years. I have heard Marshall swear he intended to kill Baker. It was about some mineral ground.
Cross examined. I live 5 or 6 miles from Marshalls. I saw him at Simon O’Farrel’s the time he made the threats. My brother was present. Only us three were together. I knew Marshall when I saw him but had no intimate acquaintance with him. We met at O’Farrel’s mill, we got to talking about mineral ground was the way we got into conversation. I don’t know who commenced the conversation. O’Farrel had gone to the P.O. Office
1 1/8 miles distant. Daniel my brother did not stay until O’Farrel came home. We left Marshall at the mill. Marshall came in a cart to the mill. I am a brother in law of David N. Baker. Marshall had come in his cart. I went after meal. I did not went to get it. I was not examined before Miss Bass. It was about 3 weeks before the old mans death. I was not at the coronors inquest. I heard of the old man’s death the next day after he was killed. I was sure I never told anyone what I have sworn to here. I had not seen Marshall for nearly a year before that to speak to him. I never have sworn to it. I told my mother of it.
Daniel Yarbrough sworn.
I know the prisoner. I heard Marshall say he would kill C. Goff or the old man Baker and would not rest satisfied until he did it. I think it was about 3 weeks until the old man Baker was killed. I am a brother in law of David N. Baker. No commission is the old man Baker. This conversation took place near the old man Baker’s house in the road. I met Marshall. I never heard him make any threats at any other time. My brother Jilson was with me. Marshall was on foot. I am sure I never told anyone what I have sworn to here. I never was on intimate terms with Marshall.
David N Baker sworn for the State testified as follows:
Marshall, father and myself were at the store of Bass and we started home. I was riding and they were walking. We went about 200 yds and Marshall borrowed my knife and we went on some 3/4 of a mile. I heard a lick and Father fell out at the right hand side of the road. Father said to me David I am a dead man. I jumped off my horse to help him up. I went around to help him up. Marshall said if you do I will kill you both. He struck at me and I broke and run. He run me about 50 yds before I got rid of him. I then went on to Father’s house for assistance. I called at James Hogans and told him that Marshall had killed Father. Benjamin Hulsey, brother William, and Hogan went back with me. when we got half way we met my mare coming without bridle or saddle. We went on and found Father lying on his back with his throat cut from ear to ear. There lay my bridle and saddle by Father. I did not stay there long. Hogan and myself went up to Bass to get a warrant for Marshall and did not stay long. Came back and went and got a wagon and team and took Father home. Left my mare standing in the road when Marshall run me away. I had no time to get on her.
I found Hogan, Hulsey and brother William at Father’s house. I did not go back to the place where he was killed. Next morning I saw some coffee lying there where he was killed. I did not see Prisoner till next evening when he was brought to father’s house a prisoner.
I went to Bass store in the evening. I suppose the sun was about an hour high. Met Marshall near Northcutt’s with Smith Jackson. Northcutts is not between Father’s house and Bass Store. Marshall and Jackson was going in the direction of Northcutts but he and Marshall turned around and went to Bass Store. I do not know what caused Marshall to turn back there was nothing said by either of us about going back to Bass Store to get whiskey. Marshall and Jackson had whisky with them. They were both riding one nag. I do not know which had the whiskey. We took a dram together. At the time I met them they were a mile and a quarter or half from Bass Store. It was along in the evening I suppose about two hours by sun. We stayed at Bass Store until between sundown and dusk. I do not know what Marshall did there. I took a dram of whiskey there. I do not recollect of Marshal drinking at
at Bass Store. I bought a bottle of whiskey to take home with me, one quart. Father and I had no difficulty or words on the road home. Father did not threaten to arrest me. On the way home did not meet anyone on the road home from Bass, loaned Marshal my knife about two hundred and fifty yards from Bass Store. At the time I was on horseback and he on foot. I stopped my mare to give him the knife. Marshal went on with the knife. I went on with him too. I kept going along with them, Father and Marshal were both on foot. This was about three fourths of a mile from where the old man was killed. Did not ask Marshal to give my knife back. Marshal did not offer to give the knife back. I heard no conversation between Marshal and Father about Marshal having the knife/files(?) _________. No hard words passed between Father and Marshall that I recollect. I do not recollect what they were talking about. I was behind them when the lick I spoke of was struck. They were a few steps ahead of me in front. Marshal was at my father’s left at the time, Marshal is left hand. Marshal struck at me with his left hand. I did not let him strike father. It was dusk when I left my horse standing in the road do not
know where he went. I was not watching him. I cannot tell whether I was a little to the right or left but think I was immediately behind them. I got off my horse on the near side. The near side is the left side. I went in front of my horse when I went to assist my father. I did not see him strike my father after I got off my horse. When he pursued me I went towards my father’s house. I ran as hard as I could and as fast as I could all the way. Suppose I was twenty or thirty five minutes going the distance. We went back as soon as we could. I suppose it took us half an hour run as fast as we could. I went on the porch at father’s before I called to Mr Hogan. Called him by name. He came about half way across the porch and I told him what had happened. The reason I called him out was that I was fearful that it would frighten Mother and the girls if I told them first. I spoke in my usual tone of voice. When I told Hogan the door was open. When I told him I think the door was open. When I called him I did not see Hogan. When I called him I knew he was in the house by hearing him talking. I was going from the gate to the porch when I heard him talking. The gate is some six steps from the porch. Called him out and told him so that Mother and sisters should not hear me for fear of fright
frightening them. If the door had been open and they had been in the room she could have heard me told Hogan when I was coming from the gate to the porch. I suppose I could have heard Hogan talking if the door had been shut when I spoke to Hogan, if Mother had been inside, I suppose she could have heard me. I don’t know why I spoke in my usual tone of voice but I did so. Persons going on street around to not exactly know how loud they do. Speak immediately myself and the three others started back where the old man was killed. I had on a home made cotton shirt the day my father was killed. The cloth was made at home. Put the shirt on in the morning when I started to the house realizing the shirt was white or nearly so. The shirt was clean when I put it on. After I brought the old man home I stayed until between one and two o’clock. Struck two in the morning when I went to bed and sleped some. Young Miss Shook was at my house, also Susan Hopkins. I went into the house in my usual manner. The door was not locked. There was a chair against the door and I shoved it open. I went in did not throw the chair over. I related to my wife in my usual tone of voice what had occurred.
I did not inform Miss Shook and Miss Hopkins that night of what had taken place with my father. I took off my shirt that night when I went home I put on a Hickory Shirt.
[Note: Hickory Shirt referred to a 19th century type of linsey woolsey or strong twill cotton shirt often worn by loggers, etc. It was heavy duty, usually with blue and white vertical stripes.]
My shirt was wet with sweat from over exertion was the cause of my taking it off. There was a little spot of blood on the wrist band of the shirt about as big as a five cent piece. I do not know when the shirt was washed. It was liken before the coroners jury there was a spot of blood on it they found on it. The saddle that was James Hogans. The saddle girth was cut. There was blood on the horse’s mane. The horse was easily caught. I could not get to my horse was the reason I did not ride when I went to give the information. I had to run to save my own life. I am near sighted.
Question. What did you do with the whiskey you bought at Bass Store?
Answer. I don’t think it is any of your business what I done with it.
Question. What became of the whiskey.
Answer. I do not know what became of the bottle or whiskey. When I got to Father’s I did not take it home with me. In running the bottle was lost and I do not know what became of it. I do not know that it was found that
night. I do not know that it was found next day. I have not seen the bottle since that I know of. I had the bottle in my bosom when I got off the mare to assist Father when he was struck. That is the last I know of it. Marshal was some under the influence of liquor when we left Basses but I did not think much. Marshal bought no whiskey to take home that I know of. We did not drink ____ Basses and the place where the occurrence took place
Question. Did you and your father ever have any difficulty?
Answer. I do not consider that a fair question.
The counsel for the prisoner insisted upon having an answer to the question whereupon the court decided that the question was not a proper one and ruled the evidence out.
Question. Did you previous to your Father’s death threaten to take his life?
Which evidence was objected to by State’s atty and ruled out by the court to which ruling the counsel for the prisoner accepted.
Question. Previous to your Father’s death did you forbid him and your Mother your house.
Which was objected to by the State’s atty and objection sustained by the Court to which decision the Prisoner’s Counsel accepted.
Question. Did you and your father have a fight on this or near the same spot of ground where he was killed at a previous time?
To which evidence the State’s atty objected and the court sustained the objection, to which the counsel for the prisoner accepted.
Question. Did you at or near the same spot of ground where your father was killed previous to this time draw a knife on your Father and threaten to kill him?
Which was objected to by State’s atty and objection sustained by the court, to which decision the counsel for the prisoner accepted.
I do not know how I feel towards the prisoner. I feel unfriendly. I did not inform Miss Shook and Miss Hopkins that night and went away before they were up in the morning. I did not take the trouble to wake them up to tell them. I had no other reason except what I have stated. I saw Mrs. Marshal at Father’s house that night after he was killed and I think she stayed there from Friday until Sunday evening. She started for home and was stopped. She was at Father’s house when he got there. One of my sisters came with Mrs. Marshal. She had gone home with Marshal’s children from school to stay all night and I think from what I heard Marshal
came with them but did not come to the house but stayed out in the brush. I found some coffee near where the old man lay. Something like half a dollar’s worth. It was scattered on the ground. I do not recollect what coffee was worth at that time. Did not use the candle for the purpose of seeing how much coffee there was. I don’t know that we used the candle expressly to hunt the coffee. I don’t know but I think the coffee was just up in a brown paper. I don’t know that Marshal had it tied it up in a handkerchief. I do not recollect of seeing a paper of coffee that night when we went back. Did not find the whiskey bottle there near my Father that night. The sadsle was lying by the side of my Father perhaps against him. I did not examine the cut on the old man’s neck at any time. I was sworn before Esq Bass on the examination of prisoner. I bought some goods at Bass for my brother in law. I stated on the examination before Bass that when I left Marshal that I went to get assistance bring Father when I left. I did not know that my Father was dead. I think I testified to the same before. Before Bass as far as it went. When I went home to get assistance I did not take any weapons of defense with me. When I went back I do not know what the other
had. I saw coffee at Father’s house next day after Mrs Marshal, prisoner’s wife, went and got it where it was last. I don’t recollect of seeing the paper the coffee was done up in. I think it was in a cloth. I think she went by the house after the coffee. Father’s family and Marshals were on friendly terms at that time. I heard no dispute between Marshal and my father that day.
The Blood came on my shirt by pulling the old man onto the wagon.
I did not see the blood get on for the reason that my arm was under him and when I took it out. James Hogan and brother William told me to wipe of the blood with some leaves. They said they wanted me to wipe off on account of the looks of it. They said they did not like to see my Father’s blood on my hands and shirt and told me to wipe it off. One of the jurors took the same shirt before the Coroner. He asked me and I showed him the shirt. He took it himself.
Simon O’Farrel. I acted as Coroner. I am a Justice of the Peace. The jury went to the place where the old man was killed. We found some coffee and some hair. One of the jury found a knife. Some tin or like yard from the place where the old man was killed.
One of the jurors took the knife to Bakers house. Knife shown to witness. Thinks it is the same one.
The knife was between where the old man was killed and his house. I examined the body of the old man with the jury. There was a cut in the side of the deceased. Don’t recollect which side of the body. The intestines protruded quite largely. I looked at the cut on the throat.
James Pratt sworn for Prisoner. I was one of the jurors on the inquest held on the body of David Baker. I saw a shirt that was said to be the one that David N. Baker wore. Saw blood on it on one of the wrist-bands. I examined the body of Baker. Saw a cut on Baker’s side. I think it was on the right side. I examined the cuts on his throat. Can’t say which way the cut was made whether from left to right or right to left.
Michael Flynn sworn for the Prisoner. I know Julian Yawberry (Gilson Yarbrough) and his brother sworn here. Have known him for 4 or 5 years. I live about a mile from them. Some people complains of their characters from what the people say of them they are not respectable.
John E. Smith sworn for Prisoner
I knew Julian (Gilson) and Jefferson Yarborough. Have known them for 7 years. I live a little over 1/4 of a mile from them. Have heard them spoken of what is their general character for truth and veracity. The people don’t think much of them.
Paul Duclos sworn. Says he knows the two Yarboroughs. Sworn on this trial here. Known them for 7 years. Live 1 1/4 miles from them. Have heard of the neighbors speak of them. From what they say their character is not very good for telling the truth. Have heard perhaps 1/2 dog speak of them.
Susan Hopkins sworn. I know David N. Baker. Have known him about 8 months. I don’t remember when the old man Baker was killed. I saw the old man after he was dead. I was living at David N. Baker when the old man was killed. Had been living there about a week. I did not hear David N. Baker when he came home the night that the old man was killed. I heard he was killed the next morning. I was subpoenaed as a witness before the magistrate on the examination of Marshall. Also before the coroner. I went away before I was examined. Mrs. Yarborough told me to go and stay with Mrs. David N. Baker as she was sick. I saw
I saw the shirt that David N. Baker wore the night the old man was killed. I saw no blood on the shirt. He had worn the shirt all the week. I examined the shirt. His wife told me to examine it. I washed some clothes. I washed some pants, his pants were gains(?). I was employed to work in the family. He pulled off his pants in the morning after the old man was killed. I washed them here the same week but not the same day that he pulled them off. I was here then after I was a witness before the Coroner. I washed no clothes that week before I washed the pants. I examined the shirt and found no blood upon it. I am sure that the shirt that Mrs. Baker requested me to examine had no blood on it. It was a white shirt I think home spun. I suppose Mrs. Baker thought I would be a witness the reason she showed me the shirt. I looked to see if any blood was on the shirt.
It seemed the reason that was Yawberry (Yarborough) told me to go and stay with Mrs. Baker. She was sick.
Milton Hill sworn
I know David N Baker, have known him since he was a boy. I never heard his reputation for truth
And veracity called in question
Francis Duclos sworn
I know the two Yawburies (Yarboroughs), have known them 25 years, live about two miles from them, have heard the neighbors speak of them
Simon O. Farrel
I know Gilson and Jefferson Yaubury (Yarborough), have known them since they were boys, their reputation for Truth and veracity is bad in the neighborhood
Charles A Goff
Knows David N. Baker and the old man Baker, has known them to have some drunken sprees.
Question. Do you know of David N. Baker threatening the old man’s life?
Objected to by States Atty and objection sustained by the Court.
Hannah Shook sworn
I recollect the time the old man Baker was killed. I was at David N. Baker’s the time the old man Baker was killed. I was there that night when he came home. I heard him when he came into the house. He knocked at the door at least. I think he did I can’t say whether they were in the habit of fastening the door or not. I heard no conversation between David and his wife. I slept in an adjoining room. I heard nothing of the old man being killed that night. I first learned it about 6 o’clock in the morning in Mrs. Baker’s room, it was on Friday night. I am intimately acquainted
with Baker and his wife. I was teaching school there and made my home at his house.
Mrs. David Baker Sworn for the Prisoner
Question: When the prisoner came to your house soon after your husband was killed what, if anything, did he say?
Which was objected to by States atty and objection sustained by the Court
Question: Did he come to your house very soon after your husband was killed and state the circumstances in relation to his being killed?
Answer: He did about 3/4 of an hour after my son had been home. David Baker was killed 1 1/2 mile.
Question: Did he say what the circumstances on or who killed him?
Objected to by States atty and objection sustained.
David N. Baker recalled. I did not see the blood when it got on my shirt.
Question: What did you do with the bottle of whiskey?
Answer: I don’t like to tell unless I am paid for it.
Stephen Hulsey went with me and I showed him the shirt
Vincent Blankenship called and sworn for prisoner
Question: Do you know of David N. Baker and his Father at or near the spot where the
old man was killed at a time previous to this occurrence?
Objected to by State’s atty and objection sustained by the Court
Question: Do you know of David N. Baker drawing a knife on his Father and threatening to kill him at or near the spot where the old man was killed on a previous occasion?
Objected to by the counsel of the State and objection sustained by the Court.
The Counsel for the prisoner then asked him to introduce in evidence the examination of the witness taken before Bass, a Justice of the Peace, which was granted by the Court by consent of States atty.
4th Sept, 1863
David N. Baker sworn and examined.
In going from Bass’s House to the home of David Baker, Marshall borrowed my knife to cut a chew of tobacco then went on about 3/4 of a mile, by the time it was nearly dark. I heard a lick and father fell. Said to me “I am a dead man.” I jumped off my mare went round to help Father up. Marshall turned on me and said “If you touch him I will kill you both.” He struck at me as I started to run. Pursued me about 80 yds. I went on home
to my father’s house, called James Hogan and told him that Richard Marshall had killed father. Hogan, Ben Hulsey, and William Baker started back with me. About half way met the mare I was riding without bridle or saddle on. After reaching the place where I left father we found him laying on his back with his throat cut from ear to ear. There laid my saddle and bridle by his side.
November 23rd, 1863
David X Baker (his mark)
Testimony about the last of August 1863. I heard Richard Marshall say he would kill old man Baker and will wash his hands in his heart’s blood.
Martha X Goff (her mark)
Catherine Baker’s testimony on the 4th day of September 1863. Richard Marshall came to my house soon after my son and others had left to assist in bringing the dead body of my husband home and stated that the old man, my husband, had said my son David had killed him. That he had got the blood on his hands and clothes by trying to lift him up and when he found the old man was dead he ran off and left him. Did not know where he was going, the first place that he found himself was at the cabin in the Hollow. That when he left that he heard
some persons coming. He said he thought they were soldiers or militia or the boys. Stayed out of the way to keep them from seeing him.
And after the argument of Counsel the Court charged the jury as follows:
The defendant is charged with murder in the first degree by having willfully, deliberately and premeditatedly killed David Baker by cutting and stabbing the said Baker with a knife. The word willfully as here used means is intentional not accidental. The word deliberately means a cool state of the blood that is not in the heat of passion caused by some reasonable and sufficient provocation. The word premeditatedly means thought of beforehand any length of time however short.
If you believe that the defendant in malice did willfully or intentionally cut or stab and kill David Baker with a knife as described in the indictment and that he thought of stabbing and killing any length of time however short, then defendant is guilty of murder in the first degree. If the prisoner inflicted the wounds upon the deceased without the specific intent to inflict upon him great bodily harm and deceased came to his death in consequence of such wounds
inflicted under such circumstances, then the defendant is guilty of murder in the first degree and so the jury should find.
Malice here mentioned means a condition of the mind and heart void of social duty and fully bent on mischief of which condition is evidenced by former grudges antecedent thereto or menace or pre_erted/pre_ertive scheme to do the act charged or any bodily harm to the deceased and if you find the defendant cut and stabbed the deceased David Baker with a knife likely to produce death or great bodily harm the law presumes he stabbed and bodily cut him in malice.
Provocation to be sufficient to mitigate or extenuate homicide as applicable in this case should amount to personal violence or injury to defendant mere words of reproach how abusive or grievous soever they may be are no provocation sufficient to free the party killing from murder.
The killing having been proved circumstantial evidence when so reasonably conclusive as to convince the minds of the jurors beyond a reasonable doubt is sufficient to convict of murder in the first degree.
The jury will entirely exclude from their consideration any statement or declaration
made by the prisoner in reference to the killing of David Baker made after that occurrence.
If the jury believe that any witness has testified falsely to any material matters to this issue, they are at liberty if they think proper to disregard the whole evidence of such witness.
If the jury has a reasonable doubt of defendant’s guilt they should give him the benefit of that doubt and acquit him, but such doubt does not mean a mere possibility of defendant’s innocence, but a rational and substantial doubt touching his guilt.
The Counsel for the prisoner excepted to the charge of the Court upon the ground it was calculated to mislead the jury. That it was illegal in instructing the jury to disregard all the statements and declarations of the prisoner made after the transaction.
The Counsel for the prisoner asked the Court to allow him to read to the jury Marshall’s statement made before the examining magistrate which privilege was refused by the court to which decision the Counsel excepted.
The jury found a verdict of murder in the first degree.
John W. Emerson (seal)
[Note: Judge Emerson practiced law in Iron County and was appointed to the Judgeship of the Fifteenth Judicial Circuit Court, https://en.wikipedia.org/wiki/John_Wesley_Emerson ]
State of Missouri )
Washington County )
I, the undersigned clerk of the Circuit Court in and for the county aforesaid, do hereby certify that the foregoing thirty six pages contains a true and perfect transcript of the record and proceedings had in the Case of the State of Missouri against Richard Marshall as the same remains of record and on file in my office.
In testimony whereof I have sworn to set my hand and affixed my official seal at office in the Town of Potosi this 21st day of June AD 1864.
William A Matthews, Clerk
William A Matthews, Clerk, fee for this transcript $21.07
Indictment folio 1
Plea Not Guilty “ 3
Jury Sworn “ 3
Verdict of Jury “ 4
Sentence Passed “ 4
Motion for New Trial and Overruled “ 5
Bill of Exceptions “ 6
Joseph Bass Evidence Folio 9
James Hogan Evidence “ 10
James Pratt Do “ 12
Catharine Baker Do “ 13
Simon O Farrell Do “ 14
Martha Goff Do “ 14
Gilson Yawberry Do “ 15
Daniel Yawberry Do “ 16
David N Baker Do “ 17
Michael Flynn Do “ 27
John D Smith Do “ 28
Paul Duclos Do “ 28
Susan Hopkins Do “ 28
Milton B Hill Do “ 29
Francis Duclos Do “ 30
Charles L Goff Do “ 30
Hannah Shook Do “ 30
Vincent Blankenship Do “ 31
Evidence before Justice of the Peace “ 32
Instructions of the Court “ 34
The State of Missouri
Appeal from Washington Circuit Court
I, Barton Bates, one of the judges of the Supreme Court, having inspected the record in this case, and being of opinion that there is so much doubt as to the legal propriety of all the proceedings at the trial of the cause as to render it expedient to take the judgment of the Supreme Court therefore do by this order expressly direct that the appeal herein granted shall operate as a stay of proceedings in the judgment.
July 1st 1864
[Note: Judge Joshua Barton Bates: https://en.wikipedia.org/wiki/Barton_Bates ]
[Note: To “stay” the proceedings is to halt the legal process or to withdraw the charges. A stay is often used to postpone a proceeding indefinitely, but a stay can be lifted within one year.]
October 7, 1865 No. 37
Richard Marshall, Appellant
Appeal from Washington Court
Filed July 1st 1864
A W Mead, Clerk
1864 November 17th Sub On Brief
1864 December 21st Submission set aside and reargument ordered
1865 October 26th Submitted on briefs by parties
“ (1865) Nov 20 Affirmed D.P.
State of Missouri vs Richard Marshall
In the Supreme Court - Respondent’s Brief
To the objection that there was no seal to the “Venire” issued by the Clerk to summon jurors, and that no return thereon was made by the sheriff the State cites the following authorities - State vs Samuels 3 Mo Res 68 - 2 Vol Revised Mo Statutes 1855 p. 910
[Note: A venire is a jury pool, also called venire facias.]
2nd - Henry Beard was a competent juror - furthermore his name does not appear on the record as one of the jurors who tried defendant - and no objections were taken to the ruling of the Court declaring him competent. State vs Rose 32 Mo Res 346
3rd - the Court properly sustained the objections made by the state to the questions propounded by defendant to the witness David N Baker as appears on pages 23 and 24 of the record because the answers of the witness might incriminate him and if answered in the affirmative could not possibly be any defense in this cause referring to acts of the witness disconnected with and distinct and different from the one for which defendant
not being tried and throwing no light upon the question of guilt or innocence of defendant.
Council Attorney for State
State vs Richard Marshall
Filed Oct 19, 1864
N W Mead, Clerk
The State vs Richard Marshall
The venire facias issued by the clerk directing and commanding the Sheriff to summon a jury should have been sealed.
The Sheriff should have made a return upon the writ of venire facias.
The names of the jurors should have been put in a box and drawn and listed as they were drawn.
See Rev Statute 2nd Vol 915.916
The court erred in excluding the evidence of David Baker when he was asked if he and his father had ever had any difficulty.
The court erred in excluding the evidence of David Baker when he was asked if he had ever threatened to take his father’s life.
The court erred in excluding the evidence of David Baker when
he was asked by the Counsel for the prisoner did you and your father have a fight on or near the spot where he was killed at a previous time.
The court erred in excluding the evidence of David Baker when he was asked by the prisoner’s Counsel if he had not near the spot where his father was killed drawn a knife upon his father and threatened to kill him.
The court erred in excluding portions of the evidence of Mrs. David N. Baker.
The court erred in excluding a portion of the evidence of Vincent Blankenship.
The court erred in refusing the Counsel for the prisoner the privilege of reading to the jury the examination of the prisoner before Bass the justice after having admitted the same in evidence it being a part of the examination.
P. 44. Defendant’s Brief continued
The court also erred in striking out from the evidence the examination of the prisoner and keeping it from the jury after having admitted the same as it was a legitimate part of the examination.
The court erred in excluding the testimony of Charles A Goff when he was asked by the prisoner if he knew of David N. Baker’s threatening his father’s life.
The court below erred in charging the jury to entirely exclude from their consideration every statement or _____ action made by the prisoner in reference to the killing of David Baker much after that occurrence.
Atty for Defendant
Filed November 16, 1864
A. W. Mead, Clerk
Richard Marshall Appellant
Supreme Court MO - October Term 1865
In answer to appellant’s objections I contend the law does not require an order of the court on the sheriff to be sealed. The sheriff is bound to respect the order of the court sealed or not sealed. The order sealed would not have been more effective. Each takes official notice of the judicial existence of the other - 2 Vol Mo Rev Stats Sec 2 p. 910
The jury was substantially selected in accordance with the law. See 4 p. 915 2 Vol Mo Stats
Appellant waived all informalities, if any, in the empanelling of the jury by going to trial without making exceptions thereto. Objections to the officer returning a jury should be taken before the trial commences and cannot be taken advantage of in arrest of judgment if course not in motion for a new trial. Samuels v State 3 head note 3 Mo Rev p. 68
Objections to appellant’s questions propounded to David N. Baker pp. 23 & 24 were properly sustained - Evidence offered must correspond with the allegations and be confined to the point in issue. The rule excludes all evidence of collateral facts or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute 1 Glf (Greenleaf) p. 61 Secs. 51 & 52. Answers to the questions may have incriminated David N. Baker and if answered affirmatively would not have impeached him. It was an attempt to investigate a matter outside and independent of the case before the court.
The court did not err in sustaining objection to question asked of Mrs. David N. Baker. p. 31
The state can prove declarations of defendant, but defendant cannot prove them when objection is made - To say otherwise is equivalent to holding defendant qualified to testify in his own behalf without taking an oath to tell the truth. The statements desired were not made at time of arrest of defendant and was not competent evidence. The proposition is so plain as to be axiomatic, that is, the court-below ruled properly.
The principle of the ruling of the court upon question asked Vincent Blankenship, p’s 31 & 32, already considered.
The court below after excluding testimony of witnesses taken before Bass from the consideration of the jury did not err in refusing counsel for defendant the privilege of reading it to the jury, consistency required it.
It was properly withdrawn from consideration of the jury for it was improperly introduced and as it’s withdrawal did not legally injure defendant he cannot complain - Improper testimony was introduced & afterwards withdrawn. The tendency of the testimony was to benefit defendant and as it’s withdrawal was proper, no injury was done him. It is unlike the case where illegal testimony, injurious to defendant, is introduced and the jury afterwards told to disregard it. The court merely corrected an error of it’s own. Had the state introduced the examination it would have been bound by it. The examination in this case is not evidence of any matters in issue - oftentimes it is so. He was not offered to impeach Baker for his testimony before the Justice and court coincides. He was offered for the purpose of getting before the jury the statement of the defendant to Mrs.
David N. Baker and was properly excluded.
Other objections made by appellant have been considered. No objection is made to the instructions. The court is respectfully asked to affirm the decision of the Circuit Court of Washington County in the above case.
J P Vastine
Circuit Atty, St. Louis Co.
State of Missouri
Filed Oct 25th 1865
J A Willis, Clerk
State of Missouri, Resp
Richard Marshall, Ap
In Supreme Court Appeal from Washington County
1st The mode of selecting the jury was in direct violation of the letter and spirit of the law; the trial was therefore illegal and void. Rev Stats 1855, page 915 and 916.
2nd The law requires that a full transcript of all the proceedings should be returned. Rev Stat 1855, p. 1205, Sec 16 and 17 The record in this case does not show the date of sentence; of filing the motion for a new trial; nor does it contain a copy of the motion, without which the court cannot say whether or not the court below committed error in overruling it.
3rd The witness David N. Baker not having objected to answer for the reason that “the answer would incriminate himself,” the court improperly interfered in preventing the witness from answering the questions put by counsel for defendant. 1 Greenleaf, Lee 451
4th The testimony offered by Chas. L
Goff on page 30 and that of Vincent Blankenship on page 31 offered by defendant was legal testimony as calculated to support a hypothesis different from that of the guilt of the defendant; and was, therefore, improperly overruled by the court.
5th The instructions given for the State are argumentative, insufficient in law and tending to mislead the minds of the jury. The instructions should charge the jury that their belief must be founded upon the evidence in the cause.
6th The sixth instruction given for the state is against the law. The courts permitted the introduction, as evidence, testimony of witnesses, including that of the defendant, taken before Justice Bass, with the consent of the prosecutor; it therefore should not have been excluded, but left for the consideration of the jury. They had a right to pass upon it.
7th When any portion of the admissions of a prisoner are detailed to the jury by the state, the defendant is en-
entitled to give in evidence the whole statement. Roseer’s(?) crim. ev. Pg 55 ____ Crim. law pg. 188 and ___ therein cited and pg 173. [Lee ___ C. Baker Lent From pg. 13]
John T. Wittram
Atty for Appellant
No. 25 October Term 1865
State of Missouri
John T. Wittram
Attorney for Appellant
Filed November 7, 1865
C.A. Willis, Clerk
State of Missouri )
vs. ) On the Supreme Court Oct T(erm) 1865
Richard Marshall )
Opinion of the Court
The Defendant was indicted, tried, and convicted of murder in the first degree, and sentenced to be hung and an appeal was taken to this court. There was no motion in arrest of judgment; no motion for a new trial appears in the bill of exceptions. Some exceptions were taken and objections were made, in the progress of the trial, without saving exceptions. Nevertheless, we have examined the whole record, in order to see if there were any error that would justify us in reversing the judgment.
It is objected that the jury was not summoned in accordance with the provisions of the statute. There was no challenge to the array; no exceptions are saved to the ruling of the court on any part of the proceedings relating to the selection and impaneling of the jury. The juror whose competency was objected to, was not called and sworn to sit on the panel. It was not necessary that the order of the court, directing the sheriff to summon jurors,
should be issued under the seal of the court. All these points are decided in Samuels v. State (3 Mo. 68). The judgment of the law is that the proceedings were correct, unless it be shown by the record that they are erroneous. (Walter v. Cathcart, 18 Mo. 256.)
Questions were asked the witness David N. Baker, whether he had ever had a difficulty with his father, the deceased; whether he had not, previously to his father's death, threatened to take his life; whether he had not previously forbid his father and mother his house; whether he and his father had not fought, at or near this same spot, at a previous time; and whether, at or near the same spot, at a previous time, he had not drawn a knife on his father, and threatened to kill him. To the first question the witness objected to answer, and his objection was sustained; and the other questions, the circuit attorney interposing, were also ruled out. These matters had no tendency to show any feelings of hostility on the part of the witness towards the prisoner, in which case they might have been admitted. They related, in part, to another time and a different transaction, and to collateral facts which
were incapable of affording any reasonable presumption or inference as to the principal matter under the investigation; and as such they were irrelevant. (I Green Ev. § 52; § 450) As tending to criminate himself, he was privileged to refuse to answer; and having declined to answer the first question of the series, it may fairly be taken that his refusal continued, though the circuit attorney interposed afterwards for his protection. (1 Green Ev. § 451)
The whole evidence was of such a character as satisfactorily to sustain the verdict of the jury, and we do not find any such error in these rulings as would justify a reversal of the judgment.
It is insisted that there was error in excluding from the jury by instructions the statement of the prisoner, which was taken down by the examining magistrate after it had been admitted at the instance of the defendant. This statement was not competent evidence either for the State or for the prisoner, and there was no error in excluding it from the jury. (Green v. State, 13 Mo. 394) If it had been admitted for the State against the accused, and then excluded from the jury by instruction,
there would have been some ground for the objection. (State v. Mix, 15 Mo. 153; State v. Wolf, 15 Mo. 168)
The instructions were excepted to on the ground that they tended to mislead the jury, and for the reason that they told the jury to disregard the statement of the prisoner, made after the transaction. Such declarations could not be evidence in his own favor. There was nothing in the instructions which could have misled the jury in any way prejudicial to the rights of the prisoner. They placed the whole matter fairly enough before the jury.
It appears by the record, that a motion for a new trial was made and overruled; but the motion itself was not made a part of the bill of exceptions, nor does it appear in the record. We think proper, on this occasion, to state distinctly what we conceive to be the law on this subject, under existing statutes, as applicable both to civil and criminal cases. The act concerning practice in criminal cases declares that no assignment of errors, or joinder in error, shall be necessary, on an appeal or writ of error, in a criminal case,
but that this court shall proceed upon the return thereof, without delay, to render judgment upon the record before them. (R. C. 1855, p. 1205, § 20) It provides nothing directly in relation to a motion for a new trial, or in arrest of judgment. All such errors as appear upon the face of record, or such as may be taken advantage of by a motion in arrest, or by writ of error, will be noticed here as a matter of course; but as to exceptions taken in the progress of the trial, as to motions for a new trial, and in arrest, which can become a part of the record only by bill of exceptions, the same rules are to govern as in civil cases. The act concerning criminal practice expressly declares, that the provisions of law in civil cases relative to the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases as far as they are in their nature applicable thereto, subject to the provisions contained in any statute (R. C. 1855, p. 1191-2, § 18); and verdicts may be set aside, and new trials awarded, on the application of the defendant, and continuances
may be granted to either party, in criminal cases, for like causes and under the like circumstances as in civil cases (§ 19). And no exceptions can be taken, on an appeal or writ of error to this court, to any proceedings had in the progress of the trial in the court below which are of such nature that they do not appear on the face of the record, nor become a part of the record without being made so by a bill of exceptions, unless they have been expressly decided by the court below (R. C. 1855, p. 1300, § 33); and in order that it may appear that such exceptions have been expressly decided by the court below, there should be a motion for a new trial, which should appear in the bill of exceptions, as overruled, and an exception should be taken to the decision of the court thereon. And all motions for a new trial, or in arrest of judgment, must be made and filed within four days after the trial, if the term so long continue; or if it does not, then before the term is ended. (R. C. 1855, p. 1286, § 6; Williams v. St. Louis Circ. Ct., 5 Mo. 248; Allen v. Brown, 5 Mo. 323; Field v. Cathcart, 8 Mo. 686; Harvey v. Henry, 18 Mo. 466; Richmond's Adm v. Wardlaw & Pogue, 36 Mo. 313) (Oct. 5 1865)
The Code of Practice of 1849 wholly omitted the first and second section of Art. VII. of the previous act concerning practice at law, which required motions for a new trial and in arrest of judgment to be made within four days after the trial, and that they should be accompanied with a written specification of the reasons upon which they were founded, (R. C. 1845, pp. 829-30), and it provided for a peculiar mode of trial and a special verdict, or a special finding of fact by the jury; and the third section of Art. XI provided that a new trial might be granted in certain cases enumerated therein, but made no provision for a motion for a new trial otherwise, though it would appear by the third section of Art. XXVI that such motions were contemplated by the act. (Laws of 1849, pp. 87 & 100) The cases of Fine v. Rogers (15 Mo. 315), and Wagner v. Jacoby (26 Mo. 530), and Prince v. Cole (28 Mo. 486), and Gray v. Heslep (33 Mo. 243), were based expressly upon the acts of 1849, and upon the changes made since that time.
By the Practice Act of 1855 (R. C. 1855, p. 1286, Art. XIII, § 6) the first section of Art. VI. of the Act of 1845 was restored, and the mode of trial was changed. With this change in the statute provisions (which was not particularly noticed in the above cases),
the case of Fine v. Rogers ceases to have any application or authority in respect of the necessity of a motion for a new trial and the time within which it must be filed. But the second section of Art. VI. of the Act of 1845, providing that "every such motion shall be accompanied with a written specification of the reasons upon which it is founded," was not re-enacted in the revision of 1855; and by force of the twentieth section of the "Act concerning Revised Laws" (R. C. 1855, p. 1026) it would seem to have been repealed, even if it were not previously repealed by the act of 1849. The result is, that while such motions must now be made and filed as formerly, it is no longer absolutely required that they shall contain a special statement of the reasons on which they are founded; and this was all that was decided in Wagner v. Jacoby (26 Mo. 530), and in Prince v. Cole and Gray v. Heslep. The chief object of the motion would seem to be, that the attention of the court below may be expressly called to the exceptions that are taken, in a final review on a motion for a new trial or
in arrest. During the progress of the trial there is no time for much consideration of the points that arise; but the motion affords an opportunity for a more careful examination and a more mature deliberation. And it would seem to be highly proper that the reasons and grounds of the motion should be stated therein, at least in such general terms as would comprehend the exceptions which have been taken and noted on the trial. But the statute has not seen fit to require a written specification of the reasons.
It must be taken that the intention of the act was, that when a motion is made within the time required, it shall be presumed that all exceptions which have been duly taken, and noted in the bill of exceptions, are expressly decided by the court when the motion is overruled; but the exceptions must distinctly appear in the bill of exceptions, otherwise they will not be reviewed in this court. Nor will any exceptions be noticed here
where no motion for a new trial has been made, or (what is the same thing) where none is made and filed within the time prescribed by law. It may be presumed that when the court below is thus formally called upon to decide expressly, and upon deliberation, on the points raised during the progress of the trial, errors may be corrected and new trials awarded, in many cases, without the delay and expense that must attend an appeal to this court.
The judgment is affirmed; and the Circuit Court of Washington County is ordered to proceed
with the execution of the sentence according to law.
Judge Wagner concurs; Judge Lovelace absent.
Filed November 20, 1865