State v. Andrew

• Decision Date: 31 October 1882
• Parties: THE STATE v. ANDREW, Appellant.
• Court: Missouri Supreme Court

76 Mo. 101

THE STATE

v.ANDREW, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Douglas Circuit Court.--HON. R. W. FYAN, Judge.

AFFIRMED.

Boyd & Vaughan, T. H. Musick and Joseph Wisby for appellant.

D. H. McIntyre, Attorney General, for the State.

HENRY, J.

The defendant was indicted at the August term, 1880, of the Douglas circuit court for the murder of one Sampson Maggard, on the 23rd day of June, 1880. On his application a change of venue was awarded to the circuit court of Webster county, in which he was arraigned at the March term, 1882, and pleaded to the jurisdiction of the court, alleging that the change of venue was awarded before he was arraigned in the Douglas circuit court, and not on his application, and because the Douglas circuit court was not then legally organized, not having adjourned to a day certain after its adjournment on the 16th day of August, 1880. His plea to the jurisdiction was not sustained, and thereupon the defendant pleaded not guilty, and a trial was had, which resulted in his conviction of murder in the second degree, and his punishment assessed at imprisonment in the penitentiary for a term of fifteen years. From the judgment he has appealed.

1. PRACTICE, CRIMINAL: change of venue.

The record contradicted the plea to the jurisdiction in every allegation, except that the change of venue was awarded before the defendant was arraigned. The 16th section of Wagner's Statutes, 1097, provides, that a change of venue may be granted, whenever it shall appear in the manner provided in subsequent sections, “that the minds of the inhabitants of the county in which the cause is pending, are so prejudiced against the defendant, that a fair trial cannot be had therein.” This was the ground alleged in defendant's application, and nothing in the above or any other section, forbids the application for, or award of, a change of venue before the arraignment.

2. _____: two indictments for same offense.

Two indictments were preferred against defendant for the same homicide, but the first was dismissed before the trial of defendant on the second, and it was not error to try him on the second. State v. Eaton, 75 Mo. 586.

3. _____: continuance

Defendant applied for a continuance on account of the absence of a witness, his daughter, and the prosecuting attorney thereupon admitted that, if present, she would testify to the facts which, in his affidavit, defendant stated he expected to prove by her, whereupon the court overruled the application. A second application was made on account of the absence of witnesses, all of whom had been served with subpœnas to attend at that term of court, and the subpœnas had been returned so served, and yet defendant asked no attachment to compel their attendance, and we think no error was committed in overruling either of the motions. Mary F. Turner, the witness named in the first application, was present and testified in the cause, and the defendant should have asked for attachments against the witnesses mentioned in his second affidavit. State v. Hickman, 75 Mo. 416.

The testimony on the part of the State was to the effect, that defendant, prior to the homicide, had made repeated threats against the deceased, who was his son-in-law, and whom he charged with neglect of his daughter; that he went to deceased's house, called him out, and after walking with him a short distance, drew his pistol and shot him. For the defense, there was proof of threats made by deceased against defendant's life, as recently as the day before he was killed; that after he was killed, his pistol was found on the ground under his body; and defendant testified that he went to the house of deceased with no purpose to injure him, and that deceased walked with him a short distance from the house, and abusing him, told him to prepare to defend himself, at the time drawing his pistol from the scabbard; that defendant then drew his and it went off and shot deceased; did not know whether he cocked it or his thumb slipped off and it fired. There was also testimony to the effect, that one of the State's witnesses, whose testimony was very damaging to the accused, endeavored, after the homicide, to hide the deceased's pistol, and thus destroy the...