State v. Billings
Citation | 140 Mo. 193,41 S.W. 778 |
Parties | STATE v. BILLINGS. |
Decision Date | 22 June 1897 |
Court | United States State Supreme Court of Missouri |
1. Defendant was indicted in A. county at the September term, 1894, and the cause was continued by agreement to an adjourned term in December, and at defendant's instance was then continued to the March term, 1895, when, on his application, a change of venue to B. county was granted. At the first term in B. county the cause was postponed by motion of the court to a day in July at the same term, when a trial was had, resulting in a disagreement, and the cause was continued to the next November term. A new indictment having been found in A. county at the September term, a motion to quash the first indictment was sustained at the November term in B. county, and defendant was remanded to A. county, where the cause had been continued at the September term under the general order. At the March term, 1896, defendant was arraigned, and the state obtained its first continuance, whereupon defendant moved for discharge on the ground that he was denied a speedy trial, as guarantied by the constitution. Held, that he was not entitled to discharge, under Rev. St. 1889, § 4222, providing that, if a person indicted be not brought to trial before the end of the second term of the court having jurisdiction after indictment found, he shall be discharged, unless the delay be on his application, or be occasioned by want of time to try the cause at such second term.
2. Where defendant obtained a change of venue, the grand jury of the county where the indictment was found had jurisdiction to find a new indictment.
3. Where defendant obtained a change of venue, and the grand jury of the county where the indictment was found preferred a new indictment, the court of that county had jurisdiction to try defendant thereon, subject to his right to renew his application for change of venue.
4. Rev. St. 1889, § 4163, providing that in no case shall a second removal be allowed, does not prevent a defendant from obtaining a change of venue on a second indictment, though he obtained a change of venue on a former indictment.
5. A trial on an indictment for murder in the first degree, wherein the court instructed only for murder in the second degree and manslaughter, was not a bar to prosecution on a new indictment for murder in the first degree.
6. Refusal to compel the prosecuting attorney to call all the witnesses summoned by the state was not error.
7. Though defendant might properly have been convicted of murder in the first degree, he could not complain because the court instructed for a lesser degree.
Appeal from circuit court, Bollinger county; James D. Fox, Judge.
Henry Billings was convicted of murder in the second degree, and appeals. Affirmed.
From a conviction of murder in the second degree in the circuit court of Bollinger county, defendant has appealed. The evidence tends to prove that on the 25th day of August, 1894, the defendant and William H. Smith were in a restaurant kept by one Jessie Lutes, in the town of Lutesville; that a wordy altercation took place between them; that deceased had an ordinary Barlow knife in his hand, which he was using in cutting some cheese which he was eating. Defendant arose, and went out into the street or space in front of the restaurant. It was a dark, cloudy, and rainy night. After defendant went out, deceased followed to the door, and while standing in the door, or on the platform in front of it, a shot was fired, which struck deceased, and he immediately fell, exclaiming that he was killed. Defendant was seen standing in front of the restaurant on the street a few minutes after the shooting, and admitted doing the shooting. He had a smoking revolver in his hand, and made the remark that he didn't think Smith, the deceased, would follow him again. Smith died the next morning. The principal plea was that of self-defense; that Smith was a dangerous character, and had on several occasions threatened to take defendant's life, and to avoid such threatened danger defendant had shot and killed him. The motion for new trial assigned 14 grounds for setting aside the verdict and discharging the prisoner. This motion perhaps presents the best order in which the various alleged errors can be considered and determined. The motion is as follows: The motion in arrest is as follows: "The grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court, in that the offense charged was then pending for trial under and upon a valid indictment found by the grand jury impaneled in and for said ...
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State v. Stogsdill
... ... Defendant cannot complain that he was convicted of murder in the second degree when the evidence showed him guilty, if at all, of murder in the first degree. The error, if any, was in his favor and is not ground for reversal. [State v. Billings, 140 Mo. 193, 41 S.W. 778.] This instruction referred the Murder in jury to another instruction for the definitions Second Degree. of "wilfully," "premeditatedly," "malice," and "malice aforethought," all of which were appropriately defined in Instruction 1. That was sufficient without ... ...
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The State v. Goddard
... ... ground of complaint. If it does he can apply and obtain his ... change, just as defendant did in this case. This is the ... uniform rule in this court. [ State ex rel. English v ... Normile, 108 Mo. 121, 18 S.W. 975; State v ... Billings, 140 Mo. 193, 41 S.W. 778.] ... II. The ... defendant was convicted of murder in the second degree on his ... trial under the first indictment, and upon his appeal that ... sentence was reversed for error of law. He now insists the ... State had no right to put him on trial ... ...
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State v. Stogsdill
... ... ... Defendant cannot complain that he was convicted of murder in ... the second degree when the evidence showed him guilty, if at ... all, of murder in the first degree. The error, if any, was in ... his favor and is not ground for reversal. [State v. Billings, ... 140 Mo. 193, 41 S.W. 778.] This instruction referred the jury ... to another instruction for the definitions of ... "wilfully," "premeditatedly," ... "malice," and "malice aforethought," all ... of which were appropriately defined in Instruction 1. That ... was sufficient without ... ...
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