Golden v. State
| Decision Date | 31 July 1850 |
| Citation | 13 Mo. 417 |
| Parties | GOLDEN v. THE STATE. |
| Court | Missouri Supreme Court |
PARSONS, for Plaintiff. The Circuit Court erred in refusing to grant the application of the plaintiff in error for a change of venue. See Rev. Code, 1845, Practice and Proceedings in Criminal Cases, art. 4, §§ 17, 19, 20. This statute is general, and guarantees the same rights to convicts as to other persons. Although the statute regulating the Penitentiary requires the convicts to be kept within the walls, there is no law which deprives them of the right of trial by an unprejudiced jury. When there are two statutes apparently repugnant to each other, the courts will construe them in favorem vitœ. As to the question of notice, see Reed v. State, 11 Mo. R. 379.
ROBARDS, Attorney-General for The State. The only point presented by the record in this case is the refusal of the Circuit Court to remove the cause from the county by change of venue. 1. There was no notice of the application as required by the 20th section of the 5th article of the act concerning Practice in Criminal Cases, Digest 1845, p. 874. 2. There is no provision made by law by which a convict can be removed from the penitentiary to a distant court during the term for which he is sentenced. Upon a change of venue being ordered, it becomes the duty of the court to order the removal of the body of the defendant to the jail of the county into which the cause is to be removed, according to the 29th section of the 5th article of the act concerning Criminal Practice, Digest, p. 876. This cannot be done in the trial of a convict, Every felon in the State penitentiary could commit a felony and be removed from the prison by taking a change of venue to another county--a thing never contemplated by the law-making power. As no provision has been made by which a convict can be removed, or by which he can take a case from Cole to any other county, it is presumable that it never was intended that he should have that right. If there be any hardship in this, it is not referable to the judiciary, but to the law-making power. The right to take a cause from one county to another, is a right or privilege derived solely from the legislative provisions, none of which are applicable to convicts in the penitentiary. Inasmuch as the right has never been extended to them by the Legislature, their honesty and loyalty is not such as to commend them very particularly to the judiciary, at least more than to protect them in their diminished rights, and admeasure to them the full penalties contemplated by law. It may be that the deprivation of this right to a change of venue, when criminally charged, like a deprivation of personal liberty, is intended as a part of the punishment of a felon. His sentence deprives him of many rights. This is one. He is deemed in law civilly dead, and it was never intended that he should be the partaker of legislative rights and privileges granted to citizens, except when specially provided.
The plaintiff in error was indicted by the grand jury of Cole county, at the August term of the Circuit Court, in the year 1849, for making his escape from the penitentiary, in which he was then undergoing a punishment by confinement for a term less than life, to-wit: for eight years, for a felony before that time committed by him. Before the trial was had in this case, the defendant below was brought into court by the lessees of the penitentiary, in obedience to an order of said court. Thereupon the court appointed counsel for the prisoner to assist him in making his defense. The defendant then moved the court for a change of venue, and filed his petition and affidavit; the petition setting forth the reason of the motion, viz.: the prejudice of the minds of the inhabitants of said Cole county so much against the defendant as to render it impossible for him to have a fair and impartial trial of said case. No notice was given of this application to change the venue previously to the motion in court. The court overruled the petition to change the venue. The defendant then plead not guilty to the indictment. A trial was had; the jury found the defendant guilty, and assessed his punishment to two years' imprisonment in the penitentiary. The defendant thereupon moved for a new trial, setting forth, among other reasons, the refusal of the court to change the venue. This motion was overruled; the defendant excepted, and brings the case to this court by writ of error.
The only point relied on for a reversal of the judgment of the court below is the refusal of that court to change the venue. The attorney-general, for the defendant in error, contends that the judgment of the court below should be affirmed for two reasons. First, the failure to give “the reasonable previous notice” of the application for the change of venue, as required by the law. See Practice and Proceedings in Criminal Cases, article 5, § 20, Digest of 1845; and, Secondly, the omission of our statute to provide for change of venue in cases of indictment against convicts in the penitentiary.
With regard to the want of notice, the plaintiff in error relies upon the authority of the case of Reed v. The State, 11...
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