State v. Sanders

• Decision Date: 12 October 1891
• Court: Missouri Supreme Court
• Parties: STATE v. SANDERS.

17 S.W. 223

106 Mo. 188

STATE v. SANDERS.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

SPECIAL JUDGES — QUALIFICATION — ELECTION — RESIDENCE — CHANGE OF VENUE — ALIBI — EVIDENCE OF MOTIVE — HARMLESS ERROR.

1. Under Rev. St. Mo. 1879, § 1878, authorizing the judge when disqualified to sit in a case to empower the members of the bar present, to the number of three or more, not of counsel in the case, to elect a special judge for the trial, one who at the time of the election is not of counsel is not disqualified to vote in the election by reason of the fact that he was prosecuting attorney at the time the indictment was found in the case for which the special election is being held.

2. Even if the requirements of Rev. St. Mo. 1879, § 1107, as to residence to qualify one for circuit judge, apply to the case of special judges elected under section 1878, loss of residence in the state is not shown by the fact that a person who resided in the state "moved" to another state, and did not return for a year, when he again resided in the state.

3. Rev. St. Mo. 1879, § 1877, provides that, when an indictment shall be pending in a circuit or criminal court, the judge thereof shall be incompetent to try the case for certain specified reasons, and a special judge to try the case may be elected, either on application of defendant under the provisions of section 1878, or on order of the court without an application, as provided by section 1880. Held, that where a special judge to try the case had been elected on order of the court, without application, there could not be a further change on application of defendant.

4. Where the evidence taken in regard to the qualification of jurors objected to is not preserved by bill of exception, it cannot be reviewed.

5. The venue need not be proved by direct testimony, but it is sufficient that it can be reasonably inferred from the facts and circumstances proven.

6. An instruction that unless the jury find and believe, from all the facts and circumstances given in evidence, the presence of defendant at the place of the alleged assault, and his guilt beyond a reasonable doubt, they should acquit, sufficiently covers the question of alibi, and renders unnecessary one asked, that the jury should acquit defendant if they had a reasonable doubt whether he was present at the time and place of the assault.

7. On an indictment for a felonious assault, the testimony of the prosecuting witness that there had been ill feeling between defendant and himself for some time; that previously he had caught defendant rolling logs in his road; that he told a third person, in defendant's presence, that his potatoes had been stolen and his cattle poisoned, and defendant denied the poisoning, but neither denied or acknowledged the stealing; that they then agreed to let each other alone, but defendant shortly after had him arrested, — is admissible, as showing the state of their feeling, and as supplying a motive for the assault.

8. Under Rev. St. Mo. 1879, § 1918, making a defendant prosecuted for a crime a competent witness in his own behalf, but providing that the fact that he is the person on trial "may be shown for the purpose of affecting his credibility," an instruction that the jury might believe or disbelieve defendant's testimony, accordingly as they should find it corroborated or contradicted by the other facts and circumstances given in evidence, is erroneous, but harmless where all the facts testified to by defendant were not only corroborated, but uncontradicted.

Appeal from circuit court, Ozark county; W. J. ORR, Special Judge.

Samuel Sanders was convicted of a felonious assault, and appeals. Affirmed.

Love & Plattenburg, for appellant. John M. Wood, Atty. Gen., for the State.

MACFARLANE, J.

Defendant was indicted, tried, and convicted in the circuit court of Ozark county for a felonious assault upon James Stoneman, by shooting him with a rifle from ambush, while in his field gathering corn. Stoneman, the prosecuting witness, testified that he saw and recognized defendant immediately after the shooting at the place from which he saw the smoke of the gun. Defendant undertook to prove that he was elsewhere when the shooting occurred. The assault was made in the morning between 8 and 12 o'clock, and it was shown that defendant arrived on horseback at Rock bridge, six miles away, at about 11 o'clock, not later, and was seen on the road about 10 o'clock. His whereabouts between 8 and 10 was not shown.

1. The case was tried at the October term, 1889, of the Ozark county circuit court. The judge of the court being unable to hold the term, an election was held under the provisions of section 1107, Rev. St. 1879, and William Monks was elected special judge, who, having been duly qualified, proceeded to discharge the duties of circuit judge for the term. The special judge, being disqualified to sit in this case by reason of having been of counsel therein, ordered an election of a special judge for the trial. An election was held, and W. J. Orr elected. The record recites the holding of the election, and that more than three attorneys were present and voted who were not of counsel in the case; that "W. J. Orr was elected special judge, who took the oath of office and qualified as such special judge." After the election defendant filed written objections to W. J. Orr as special judge, giving two reasons: First, that one of the attorneys voting at the election has been of counsel in the case; and, second, because W. J. Orr has not been a voter in the state for the period of three years. On the hearing of these objections it was agreed that J. L. Davis was prosecuting attorney at the time the indictment was found by the grand jury, and voted in the election of special judge, and that more than three attorneys not of counsel voted besides Mr. Davis, and "that W. J. Orr has resided in Missouri since February, 1856, until November, 1884, when he moved to Oregon, and returned to this state in November 1885, and has resided here ever since." The statute (section 1878, Rev. St. 1879) authorizes the judge of the court, when himself disqualified to sit in a case, "by an order of record, to empower the members of the bar present, to the number of three or more, duly enrolled in said court, and licensed attorneys of this state, and not of counsel in the case, to proceed to the election of a special judge for the trial of the particular cause pending.' The record shows and it was admitted that the requisite number of lawyers, having the proper qualification to constitute a legal election, were present. The record does not show for whom Mr. Davis voted, nor that the result was changed by his vote. Moreover, the agreed statement does not show that he was counsel in the case when the election was held, which is necessary to a disqualification under the statute. Whether it would be competent to go behind the record, to inquire into the qualifications of those voting at an election held under this statute, it is not necessary to decide. Neither is there force in the objection that the special judge was not qualified to act for the reason that his residence in this...