State v. Wear

Decision Date25 June 1898
Citation145 Mo. 162,46 S.W. 1099
PartiesSTATE v. WEAR.
CourtMissouri Supreme Court

9. A defendant indicted for murder pleaded that he had been previously indicted for the same offense; that, the judge of the county where the indictment was found being disqualified, a special judge was selected, who took charge of the case, and, on defendant's application, granted a change of venue; that defendant was admitted to bail, and the case docketed in the county to which the venue was changed; and that the circuit court of said county discharged and released defendant from the offense charged in said indictment, as shown by certified copy of the order and judgment record, which stated "that said defendant had not been brought to trial before the end of the third term of said court, * * * and that he is hereby released and discharged from said indictment, and from the offense therein charged"; that the offense charged in that indictment was the same as that charged in the indictment at bar; and that defendant is the same defendant as was discharged from said prior indictment. Held sufficient as a plea in bar, under Rev. St. 1889, § 4223.

10. Where a judgment discharging a defendant for failure of the state to prosecute before the third term is entered at the fourth term after a continuance has been granted on the state's application, it will be presumed that the continuance was set aside before the judgment was entered, and, nothing appearing to the contrary, that the other continuances were at the instance of the state.

11. It cannot be presumed that a criminal case was not on the docket at a term during which the defendant was discharged, from the fact that the prosecuting attorney moved to enter a nolle prosequi, and, on being refused, demanded a forfeiture of the defendant's recognizance, and, on that being refused, withdrew his "notice to reinstate the cause on the docket."

12. Under Rev. St. 1889, § 4223, it was not incumbent on a defendant to demand a trial in order to entitle him to be discharged on the expiration of the time limited.

13. Acts of the legislature passing a statute limiting criminal prosecutions, and of a prosecuting attorney entering a nolle prosequi as to the whole or part of an offense, are not an exercise of the pardoning power.

14. A judgment entered at the term at which a continuance is granted, without the continuance being first set aside, is irregular only, and not void.

15. Where a court of general jurisdiction has acquired jurisdiction of a case, any subsequent error or irregularity will not oust it thereof, nor subject a judgment obtained in the exercise of that jurisdiction to collateral attack.

16. Error in the refusal of a trial court to allow a prosecuting attorney to enter a nolle prosequi can only be preserved by bill of exceptions.

17. Jurisdiction of a criminal proceeding, having once attached to a court of general jurisdiction, continues during the pendency of the cause in such court until final disposition is made, and is not lost by its refusal to permit the prosecuting attorney to enter a nolle prosequi.

Gantt, C. J., and Robinson, J., dissenting.

In banc. Appeal from circuit court, Butler county; Henry C. Riley, Judge.

Charles Wear was convicted of murder in the second degree, and he appeals. Reversed.

Henry N. Phillips and Louis F. Dinning, for appellant. R. F. Walker, Atty. Gen., Morton Jourdan, W. E. Renfro, E. C. Crow, Atty. Gen., and Sam. B. Jeffries, for the State.

BURGESS, J.

From a conviction in the circuit court of Butler county, of murder in the second degree, and the fixing his punishment at 35 years in the penitentiary, under an indictment theretofore returned against him by the grand jury of said county, for shooting to death, with a pistol, one Charles E. Lael, at said county, on the night of April 9, 1892, defendant appeals.

The homicide occurred at the city of Poplar Bluff, which is the end of a division on the Iron Mountain Railroad, which passes through that city. Train crews are made up there for outgoing trains. The deceased, Charles E. Lael, was at the time in the service of the railway company, as night caller. It was a part of his duty to go to the residence or boarding places of the various members of the crew that were to go out, and awake and notify them to report at the telegraph office in time to take charge of the train. On his return from calling a member of a crew, defendant was standing on one of the streets, having in his hands a crutch and cane; and, as deceased passed him, defendant struck him with one of them on the leg, when deceased pushed defendant off the sidewalk, which was a little higher than the street, into the mud, which angered him. Deceased then ran into a saloon some distance away, into which Wear followed him, threatening to whip him. Lael then left the saloon, and ran to the roundhouse, to his headquarters. Wear then applied to two different persons for a pistol, but did not succeed in getting one from either of them. He, however, hunted for deceased, and remarked to one witness that he was looking for Ed. Lael, and said, "I will get him before I quit." Perhaps an hour after Lael arrived at the roundhouse, he went to where he first came in contact with Wear on the sidewalk, to hunt for his hat, which he lost there at that time; and, upon his return to the roundhouse, Wear stepped from behind a car, and said to Lael, "Are you the son of a bitch that hit me?" and at once fired the shot that killed Lael. The bullet entered the left temple, and took a downward course, resulting in almost instant death. No arms of any kind were found upon the person of deceased after his death. No witness testified to any attempt by deceased to strike Wear with his lantern or otherwise at the time he was shot. Skinner testified that, after the shooting, Ed. Lucas, who had died since the killing, and before the trial, said to Wear, "You have killed him," and that Wear replied, "That's what I intended to do." Defendant testified in his own behalf. He stated that he had been notified after the first scuffle or difficulty, by some person, now dead, that Lael had threatened his life, and that on his way to the Gifford Hotel, where his brother-in-law boards, the person notifying him gave him a pistol; that he took it, and put it in his pocket; that he then, instead of going to the Gifford Hotel, returned to the depot, and was on his way to another hotel; that he met Lael, and that he (Wear) asked Lael, "What's the trouble? What is the matter with you? What did you hit me for?" that Lael replied, "I hit you once, and I will hit you again;" that he then struck him on the side of the head with the lantern, and then with his fist. On cross-examination he testified that up to the time he accosted Lael, and asked, "What's the matter with you?" Lael had done and said nothing. He denied seeing witness Morris, who testified that he had attempted to borrow a gun from him. He denied seeing the witness Skinner, who testified to his attempt to borrow a gun prior to the killing. On redirect examination he testified that, upon being struck by Lael with the lantern, he drew his weapon, and fired.

There are a number of questions involved in the record in this case which are of a preliminary character, involving the regularity of the proceedings, as well also as the jurisdiction of ...

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