State v. Billings

Citation140 Mo. 193,41 S.W. 778
PartiesSTATE v. BILLINGS.
Decision Date22 June 1897
CourtUnited 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: "(1) The court erred in assuming jurisdiction over the person of defendant and over the subject-matter charged in the indictment herein, and in overruling defendant's several pleas and motions filed and submitted to the court at the last term of this court, and in refusing to hear the proofs offered by defendant in support of said pleas and motions and heard by the court at said last term. (2) The court erred in overruling defendant's motion to be discharged from further pleading herein, filed at this term, and in refusing to consider the proofs of defendant offered, and by the court heard, on said motion. (3) The court erred in permitting, over defendant's objection, the jury to hear incompetent, irrelevant, and illegal evidence offered by the state, and in excluding and in refusing to permit the jury to hear competent, relevant, and legal evidence offered by the defendant. (4) The court erred in refusing to permit defendant to cross-examine the material witnesses on the part of the state whose names were indorsed by the grand jury on the indictment herein, and not called by the state to testify herein, and also in refusing to permit defendant to cross-examine the witnesses for the state summoned by the state, and not called by the state to testify. (5) The court erred in compelling defendant, on his calling the witnesses aforesaid, to examine them in chief as his own, when their names were returned on said indictment, and on said summons or subpoenas, for the state, as witnesses adverse to and against him. (6) The court erred in permitting the state to withhold from and not allow the defendant to meet the witnesses against him face to face at and during the trial, and particularly all of those indorsed on the indictment by the grand jury. (7) The court erred in giving the jury illegal instructions on the part of the state, and in refusing to give to the jury proper and legal instructions suggested and offered by the defendant. (8) The verdict of the jury is against the evidence and the weight of the evidence, against the law and the instructions of the court. (9) The court erred in failing to give to the defendant a speedy and public trial before an impartial jury. (10) The court erred in compelling defendant to go to trial before a jury of said county, after the court, upon the proofs heard by the court, had adjudged that the inhabitants of said county were prejudiced against him. (11) The court erred in that the judge sitting at the trial was, in defendant's application for a change of venue for the trial of defendant upon the first indictment, returned herein at the September term, 1894, of which the indictment here is but the same charge of the same offense, and in the same language, charged on the oath of the defendant with being prejudiced against defendant. (12) The court erred in putting defendant upon his trial on the indictment herein, in that defendant had procured his change of venue for the trial of the offense with which he is charged in the indictment herein, being the same offense contained in the indictment presented at the September term, 1894, of this court, and the court and the state thus wrongfully and illegally deprived the defendant of another change of venue, and of a fair and impartial trial, and of an impartial jury to try the issues herein. (13) Because the court had no jurisdiction of the person of defendant nor of the subject-matter of the offense charged. (14) The court erred in refusing to set aside the change of venue on defendant's application made at the March term, 1895, of this court, and in permitting the state, by means of the present indictment, to debar defendant of a trial speedy, public, and before an impartial jury, in a county wherein the inhabitants were without prejudice." 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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36 cases
  • State v. Stogsdill
    • United States
    • Missouri Supreme Court
    • December 11, 1929
    ... ...         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 ... ...
  • The State v. Goddard
    • United States
    • Missouri Supreme Court
    • April 23, 1901
    ... ... 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 ... ...
  • State v. Stogsdill
    • United States
    • Missouri Supreme Court
    • December 11, 1929
    ... ...           ... 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 ... ...
  • State v. Ferguson
    • United States
    • Missouri Supreme Court
    • May 16, 1919
    ... ... Others called would ... serve only to corroborate those examined. This is not ... necessary. [ State v. Ivy, 192 S.W. 737; State v ... Dixon, 190 S.W. 294; State v. Swain, 239 Mo ... 723, 144 S.W. 427; State v. McAfee, 148 Mo. 370, 50 ... S.W. 82; State v. Billings, 140 Mo. 193, 41 S.W ... 778; State v. David, 131 Mo. 380, 33 S.W. 28.] The ... assignment, therefore, lacks merit ...          V. No ... objections were made or exceptions saved, at the time, to the ... manner in which the trial jury was summoned and impaneled ... Such ... ...
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