State v. Neider

• Citation: 6 S.W. 708,94 Mo. 79
• Parties: STATE v. NEIDER.
• Decision Date: 06 February 1888
• Court: United States State Supreme Court of Missouri

6 S.W. 708

94 Mo. 79

STATE v. NEIDER.

Supreme Court of Missouri.

February 6, 1888.

1. CRIMINAL LAW — ELECTION OF SPECIAL JUDGE — TIE VOTE.

On the trial of an indictment for assault with intent to kill, the regular judge, having been of counsel, ordered the election of a special judge, and the result was a tie. Held, that the clerk properly gave the casting vote; Rev. St. Mo. § 1878, expressly requiring him to do so in such a case.

2. SAME — POWER OF SPECIAL JUDGE — LOST INDICTMENT — SUMMONING A GRAND JURY.

Rev. St. Mo. § 1879, enacts that a special judge shall, during the hearing of the particular cause, possess all the powers of the regular judge. Under acts Mo. 1874, p. 99, § 7, courts have power, after a grand jury has been discharged, when it shall be necessary, at the same term or session, to order another grand jury to be summoned. While a trial before a special judge was proceeding, it was found that the indictment was lost. Held, that such judge had power to order a grand jury to be summoned to find an indictment.

3. SAME — CHANGE OF VENUE — PREJUDICE OF JUDGE — AFFIDAVITS.

Rev. St. Mo. § 1878, provides that, on the trial of an indictment, an application for change of venue, on the ground of prejudice in the judge, shall be supported by the affidavit of two or more reputable persons not of kin to the defendant. Held, that an application not so supported was properly denied.

4. SAME — CONTINUANCE — ABSENCE OF WITNESSES.

On the trial of an indictment, an application for a continuance on the ground of the absence of witnesses set out what the witnesses were expected to prove, and the facts necessary to authorize a continuance in such a case. The prosecuting attorney consented that the facts set out in the application as what defendant expected to prove by the absent witnesses should be taken as their testimony. Held, that it was reversible error to overrule the application. State v. Berkley, 4 S. W. Rep. 24, followed.

Appeal from circuit court, Butler county; GEORGE N. BOUGHTON, Special Judge.

Indictment for assault with intent to kill. Leander O. Neider, the defendant, being convicted, appealed.

Dinning & Byrns, for appellant. The Attorney General, for the State.

NORTON, C. J.

Defendant was indicted in the Butler county circuit court at its May term, 1885, for an assault with intent to kill one M. A. Johnston. The judge of said court, having been of counsel, ordered an election of a special judge to try the case, which the clerk thereupon held, and which resulted in a tie vote between two of the attorneys voted for, whereupon the clerk cast his vote for George N. Boughton, one of the two attorneys, for whom the tie vote had been cast, and declared said Boughton elected special judge to try the cause. The defendant objected to said Boughton qualifying as special judge, on the ground that the clerk had no right to vote. This objection was overruled, and constitutes the first ground of alleged error. The objection was properly overruled, as by section 1878, Rev. St., it is...