State v. Anderson

• Citation: 9 S.W. 636,96 Mo. 241
• Parties: STATE v. ANDERSON.
• Decision Date: 12 November 1888
• Court: United States State Supreme Court of Missouri

9 S.W. 636

96 Mo. 241

STATE v. ANDERSON.

Supreme Court of Missouri.

November 12, 1888.

1. CRIMINAL LAW — CHANGE OF VENUE — RECEIVING NEW INDICTMENT.

Rev. St. Mo. §§ 1877-1881, providing for the election of a special judge, or for calling in the judge of another circuit for the trial of a particular cause, when an affidavit of prejudice is made against the presiding judge, contain nothing which disqualifies the regular judge from receiving a new indictment, after such affidavit has been filed, and pending the hearing of the application.

2. SAME.

It is not essential to further proceedings on the second indictment that the first be quashed. Under Rev. St. Mo. § 1808, the second suspends the first, and no proceedings could be had upon it.

3. SAME — TRANSCRIPT ON CHANGE OF VENUE.

It being necessary to proceed with the second indictment as if it had been an entirely new prosecution, it is only necessary, in making out the transcript on change of venue, to include the proceedings had on the second indictment.

4. SAME — OBJECTION TO JURISDICTION.

After defendant has applied for a change of venue, on the ground of prejudice on part of the court, and the change is granted, he cannot be heard to object to the jurisdiction of the court to which the case is sent, on the ground of the insufficiency of his own affidavits.

5. SAME — SECOND CHANGE OF VENUE.

Rev. St. Mo. § 1881, as amended by Acts 1887, p. 168, makes no provision for a second change of venue because of alleged prejudice of the judge; and, in the absence of statute, it must be held that but one is allowable.

6. SAME — EVIDENCE — CONFESSIONS.

Three persons to whom confessions were made testified that no threats nor promises were offered, but that the confessions were free and voluntary. Defendant contended that they were extorted from him by fear of mob violence. The only evidence to support this was that of one witness that there was considerable excitement in the village that day, and more or less talk of violence; but no demonstration actually occurred, nor did it appear that defendant was alarmed at the state of public feeling. Held, that the confessions were properly admitted.¹

7. SAME — CONTINUANCE — ABSENT WITNESS.

Defendant's application for a continuance showed that a material witness had been present on the day set for a former trial; that soon thereafter he left the county without defendant's knowledge; that it was afterwards learned he was in Kansas City, and that two subpoenas for him were sent to the sheriff there, but both returned not served; that the witness was administrator of an estate in the county, and was expected to return before the trial on business connected with the estate, but that he did not; that it was learned only a short time before the term that the witness was in Kansas. Held, that sufficient diligence had been shown, and the court erred in refusing a continuance.

Appeal from circuit court, Laclede county; C. C. BLAND, Judge.

O. H. Travers, for appellant. B. G. Boone, Atty. Gen., for respondent.

BLACK, J.

This defendant, Edward Anderson, who was indicted with his mother and brother Henry, and one Saunders, for killing Swain Anderson, appealed from a conviction of murder in the first degree. The deceased was the father of this defendant. This indictment was found at March term, 1887, of the Wright circuit court. At the following August term the defendant applied for a change of venue, alleging prejudice on the part of Judge WALLACE, who made an order setting the cause down for hearing by Judge BLAND of the Eighteenth circuit. Judge BLAND held the court pursuant to the order, and on the application of defendant awarded a change of venue to Laclede county, because of prejudice of the inhabitants of Wright county. Defendant then filed in the Laclede circuit court his plea to the jurisdiction of that court, which was overruled, and of this ruling error is assigned.

The facts disclosed by the plea are that before the filing of the present indictment, and at the July term, 1886, the defendant was indicted for the same offense; that he applied for a change of venue on the ground of prejudice of Judge WALLACE, who then set the cause down for trial by Judge BLAND at a designated time; that Judge BLAND failed to appear and hold the court for the trial of defendant: and that thereafter the grand jury of Wright county presented the present indictment, which Judge WALLACE received, allowed the state to dismiss as to the first, and passed upon the new application for a change of venue based upon alleged prejudice on his part. The contention is that when Judge WALLACE first set the cause down for hearing he lost all jurisdiction of the cause, and that his subsequent acts were all void.

1. The second indictment was probably presented because of the failure of Judge BLAND to hold court at the designated time for the trial of defendant. But whether for that or some other reason, it was entirely competent for the grand jury to present the second one. Sections 1877-1881, Rev. St., provide for the election of a special judge, or for calling in the judge of another circuit, for the trial of a particular cause, when an affidavit of prejudice is made against the presiding judge; but there is nothing in these sections which disqualifies the regular judge from receiving a new indictment. Besides this, the second indictment, by force of section 1808, suspended the first one, so that no further proceedings could be had upon it. It became necessary to proceed with the second just as if it had been an entirely new prosecution. It follows that Judge WALLACE had the power and jurisdiction to receive the second indictment, and to pass upon the second affidavit of prejudice made against him. As to the order allowing the state to dismiss as to the first, it is sufficient to say that it was not essential to further proceedings on the second that the first be quashed. State v. Eaton, 75 Mo. 586; State v. Vincent, 91 Mo. 665, 4 S. W. Rep. 430.

2. The defendant insists, on this plea to the jurisdiction of the Laclede circuit court, that the order of Judge WALLACE calling in Judge BLAND is void, and hence Judge BLAND had no jurisdiction to send the cause to Laclede county, or to make any other order in the cause. This contention is based on the ground that the affidavits of prejudice on the part of Judge WALLACE were defective. This is a strange position on the part of defendant. He makes affidavit of prejudice against Judge WALLACE, and procures an order for the trial of the cause by Judge BLAND, and then says that order is void because the affidavits filed by himself were defective. Judge WALLACE had the jurisdiction to make the order, though the affidavits were defective. No exceptions were taken to the order made, and for this reason, had the order been adverse to the defendant, he could not be heard to complain in this court; but the order was made at his own instance, and he will not be heard to complain because he imposed defective affidavits upon the court.

3. Since it was necessary to proceed with the second indictment, as if it had been an entirely new prosecution, it follows that, in making out the transcript for the Laclede circuit court, it was only necessary to include those proceedings having reference to that indictment. The proceedings had on the first were properly omitted. This disposes of a number of minor objections, which need not be considered in detail.

4. The defendant's application for a continuance being overruled in the Laclede circuit court, he thereupon filed a petition and affidavits for another change of venue, alleging prejudice on the part of Judge BLAND; which application was overruled, and of this ruling error is assigned. In the recent case of State v. Shipman, 93 Mo. 148, 6 S. W. Rep. 97, the regular judge was unable to hold a regular term of his court. The attorneys elected a judge to transact the entire business of that term, under section 1107, Rev. St. At the term thus organized the defendant was indicted, and we then held that the judge thus elected would be rendered incompetent to try the particular cause, upon the filing of proper affidavits of his prejudice against the defendant; but that the ruling was made upon the ground that a judge thus elected under that section to transact the business of an entire term stood in the shoes of the regular judge in respect of such applications. In the prior case of State v. Greenwade, 72 Mo. 298, where the defendant...