State v. Matthews

• Decision Date: 26 November 1888
• Citation: 10 S.W. 30,98 Mo. 119
• Parties: STATE v. MATTHEWS.
• Court: Missouri Supreme Court

10 S.W. 30

98 Mo. 119

STATE v. MATTHEWS.

Supreme Court of Missouri.

November 26, 1888.

1. JURY — SUMMONING — PREJUDICE OF SHERIFF AND CORONER.

On motion for the appointment of elisors in a criminal case, the defendant's affidavit, alleging prejudice in the sheriff and coroner, is not conclusive, and the denial of the motion is not ground for reversal, in the absence of abuse of discretion; Rev. St. Mo. § 3894, providing that, when it shall appear that the sheriff is prejudiced, the coroner shall execute the process. Following State v. Leabo, 1 S. W. Rep. 288.

2. SAME — COMPETENCY.

It is not ground of objection to a juror that he was summoned on a previous panel ordered by the regular judge, who did not try the case because of prejudice subsequently alleged against him; nor that he was summoned on the trial of a co-defendant, and was then challenged peremptorily.

SHERWOOD, J., dissenting.

Appeal from circuit court, Christian county; M. G. McGREGOR, Judge.

Indictment against John Matthews for murder. William Walker and others were indicted jointly with him. Defendant's motion for change of venue on the ground of prejudice in the judge was granted, so far as related to the trial of the case by the regular judge, and Hon. M. G. McGREGOR, judge of the Fifteenth circuit, tried the case. Defendant was convicted, and appeals. Rev. St. Mo. § 1877, provide that the judge of the circuit or criminal court shall be incompetent to hear and try a criminal cause, when in anywise interested or prejudiced, or when defendant shall make and file an affidavit supported by the affidavit of at least two reputable persons, not of kin to or of counsel for defendant, that the judge will not afford him a fair trial, or will not impartially decide his application for change of venue on account of the prejudice of the inhabitants. Section 1878 provides for the election of a special judge in such case by the members of the bar present. By section 1881, if no suitable person will serve when elected special judge, or if in the opinion of the judge no competent or suitable person can or will be elected, he may request the judge of some other circuit to try the cause.

Boyd & Delaney and Travers & Payne, for appellant. B. G. Boone, Atty. Gen., for the State.

NORTON, C. J.

At a special term of the Christian county circuit court, held in April, 1887, defendant was jointly indicted with a number of others for murder in the first degree for killing one Charles Green on the 11th day of March, 1887. A continuance of the cause was granted to the August term, 1887, of said court, at which term the cause was again continued till the February term, 1888, of said court, at which time the defendant filed an application for a change of venue, alleging prejudice against the judge of the court. The application was granted, and, it appearing that no member of the bar could or would be elected special judge, it was ordered that MALCOLM G. McGREGOR, judge of the circuit court for the Fifteenth judicial circuit, be requested to try the case. The cause was then tried at said term, and McGREGOR presiding as judge, and conducting the trial, which resulted in the conviction of defendant for murder in the first degree, and from this judgment he has appealed to this court. The evidence in this case is substantially the same as in the case of State v. Walker, 9 S. W. Rep. 646, (decided at the present term;) and as all the points relied upon for reversal in this case, except those hereinafter noted, were ruled upon in that case adversely to defendant, it is unnecessary to repeat them here. The points made in this case, and neither made nor passed upon in the case of State v. Walker, supra, are as follows: It appears from the record in this case that at the February term, 1888, of the circuit court, after Judge McGREGOR had been called to act as judge in the trial of the cause, defendant filed a motion for the appointment of an elisor to summon a...