The State v. Newsum
| Decision Date | 18 June 1895 |
| Citation | 31 S.W. 605,129 Mo. 154 |
| Parties | The State v. Newsum, Appellant |
| Court | Missouri Supreme Court |
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.
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 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 and requested Judge Shackleford to appear and hold this court at the time appointed for the trial of said cause, and the said Judge Shackleford now appearing in obedience to said notification and request, Judge Riley vacates, whereupon said motion of protest was overruled. On the twenty-seventh day of June the motion of protest was renewed before Judge Shackleford and again overruled. A motion for a continuance was then made by defendant, because of the absence of witnesses Louis McNorman and Richard Eckhard, and denied.
Defendant's first contention is that the action of the Hon. Henry C. Riley in requesting the Hon. D. W. Shackleford, judge of the fourteenth judicial circuit, to preside at the trial of the cause was without authority of law, conferred no jurisdiction upon the latter, and that all proceedings by him are null and void.
Section 4174, Revised Statutes, 1889, provides that, "when any indictment or criminal prosecution shall be pending in any circuit or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause * * * when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial, or will not impartially decide his application for a change of venue on account of the prejudice of the inhabitants of the county or circuit."
The section next following provides that, "whenever in any cause the defendant shall make application by petition under the oath and supported by the affidavit of two or more reputable persons * * * for a change of venue for any of the reasons stated in the next preceding section, it shall be lawful for the judge to hear such application, and immediately thereafter, 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, or to decide defendant's application for a change of the venue -- such election to be held by the clerk," etc.
By section 4178, Revised Statutes, 1889, it is provided that, "if in any case the judge shall be incompetent to sit for any of the causes mentioned in section 4174, and no suitable person to try the case will serve when elected as such special judge, or if, in the opinion of the judge of said court, no competent or suitable person can or will be elected as such special judge, he need not order such election, but may, in either case, set the cause down for trial on some day of the term, or on some day as early as practicable in vacation, and notify and request the judge of some other circuit to try the cause; and it shall be the duty of the judge so requested to appear and hold the court at the time appointed for the trial of said cause; and the shall, during said trial, and in relation to said cause, possess all the powers and perform all the duties of a circuit judge. * * *"
An application by petition under the oath and supported by the affidavit of two or more reputable persons for a change of venue because of the prejudice of the presiding judge was filed in the Cape Girardeau circuit court at the adjourned January term, February 27, 1894, of said court, and overruled at the May term following, when the court made an order of record reciting that the Hon. D. W. Shackleford, judge of one of the circuit courts of the state, having consented to hold that term of the court and to try this cause on the twenty-fifth day of June next ensuing, set the case for trial on that day.
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