31 S.W. 605 (Mo. 1895), The State v. Newsum

Citation:31 S.W. 605, 129 Mo. 154
Opinion Judge:Burgess, J.
Party Name:The State v. Newsum, Appellant
Attorney:C. P. Johnson, Ashley C. Clover and H. C. O'Bryan for appellant. R. F. Walker, attorney general, for the state.
Case Date:June 18, 1895
Court:Supreme Court of Missouri
 
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Page 605

31 S.W. 605 (Mo. 1895)

129 Mo. 154

The State

v.

Newsum, Appellant

Supreme Court of Missouri, Second Division

June 18, 1895

Appeal from Cape Girardeau Circuit Court. -- Hon. D. W. Shackleford, Special Judge.

Reversed and remanded.

C. P. Johnson, Ashley C. Clover and H. C. O'Bryan for appellant.

(1) The indictment is fatally defective because it fails to conclude "against the peace and dignity of the state," as required by the constitution of the state. Constitution, art. 6, sec. 38; State v. Stacy, 103 Mo. 11; State v. Pemberton, 30 Mo. 376; State v. Lopez, 19 Mo. 254; Williams v. State, 27 Wis. 402; Lemons v. State, 4 W.Va. 755; 10 Am. & Eng. Encyclopedia of Law, p. 513, et seq. (2) Advantage of this defect may be taken for the first time in this court. State v. Burns, 99 Mo. 471; State v. McClung, 35 W.Va. 280; State v. Sims, 43 Tex. 521; Holden v. State, 1 Tex.App. 425. (3) The court abused its discretion in closing and refusing to reopen the case before a return was made by the sheriff of Mew Madrid county on the subpoenas for John Fuller and David Crewshon.

R. F. Walker, attorney general, for the state.

(1) The indictment properly charges the crime of murder in the first degree. (2) There was no error committed by the trial court in its rulings on the evidence and the instructions. (3) The refusal of the court to postpone the case on account of the alleged absence of certain witnesses of defendant was proper, because no diligence was shown on the part of defense in attempting to secure their presence; besides, an opportunity was given defendant when the court convened, the day after the application for a postponement was filed, to introduce further testimony, and defendant stated that he had none to offer. See State v. Gamble, 108 Mo. 500, and State v. Banks, 118 Mo. 117.

OPINION

Page 606

[129 Mo. 155] Burgess, J.

From a conviction of murder of the first degree in shooting to death with a revolving pistol one Wm. S. Gray defendant appealed. The murder is charged to have been committed on the night of November 12, 1892, in a saloon in New Madrid, New Madrid county, Missouri. The indictment was preferred by the grand jury of that county, and on application of defendant the venue was changed to Cape Girardeau county.

At the January term, 1894, of the circuit court of the last named county, defendant was arraigned, and [129 Mo. 156] upon refusal to plead, by direction of the court a plea of not guilty was entered of record for him. Thereafter, on the twenty-seventh day of January, 1894, defendant filed a petition and affidavit charging prejudice and disqualifying the presiding judge of that circuit, the Hon. H. C. Riley, from presiding at the trial of the cause. This petition was taken under advisement until the May term of said court next following, to wit, May, 1894. At the May term of said court, 1894, and on the ninth day of that month, Hon. Dorsey W. Shackleford, judge of the fourteenth judicial circuit having consented to hold the May term of said court and try the cause, by order of record it was set for trial on the twenty-fifth day of June, 1894, and the petition denied.

On the twenty-sixth day of June, before Judge Riley, a motion of protest was filed against Judge Shackleford, because it did not affirmatively appear that he had been notified and requested to try the cause, and, evidence having been heard in support of said motion, there was spread upon the records of the court a recital that Judge H. C. Riley having heretofore set the cause down for trial for June 25, 1894, and having notified...

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