State v. Banton.

• Decision Date: 17 December 1937
• Docket Number: No. 35365.,35365.
• Citation: 111 S.W.2d 516
• Parties: THE STATE v. ARTHUR BANTON, Appellant.
• Court: Missouri Supreme Court

111 S.W.2d 516

THE STATE v. ARTHUR BANTON, Appellant.

No. 35365.

Supreme Court of Missouri.

Division Two, December 17, 1937.

Appeal from Mercer Circuit Court. — Hon. A.G. Knight, Judge.

REVERSED AND REMANDED.

L.A. Warden and Agnes Mae Wilson for appellant.

(1) The court erred in refusing to sustain defendant's plea in abatement for the reason set forth and the law cited in said plea in abatement. (2) The court erred in refusing to permit defendant to have a preliminary hearing as provided by law. (3) The court erred in refusing to sustain defendant's motion to quash the information, for the reasons set forth in said motion. (4) The court erred in overruling defendant's objection to the prosecuting attorney's statement, "This case was filed in Grundy County and was brought here on change of venue by the defendant," and in commenting, "The State couldn't take a change of venue. Objection overruled: go ahead."

Roy McKittrick, Attorney-General, and William Orr Sawyers for respondent.

(1) The preliminary hearing in this case was regular and proper and gave the trial court jurisdiction to proceed with the trial. Sec. 3477. R.S. 1929; 16 C.J., p. 324, sec. 579. (2) The trial court's jurisdiction to try this murder case could not be limited to the records affirmatively showing a certified copy of the transcript of the testimony taken at the preliminary hearing on file or attached to the warrant of commitment. Sec. 3489. R.S. 1929; State v. Ancell, 333 Mo. 26, 62 S.W. (2d) 448. (3) There was no reversible error when the jury was informed that the case came to Mercer County on a change of venue from Grundy County. Sec. 3563, R.S. 1929; 17 C.J., p. 236, sec. 3579; State v. Reed, 44 S.W. (2d) 33, 329 Mo. 203.

LEEDY, P.J.

Appellant was charged by information in the Circuit Court of Grundy County with murder in the first degree, in having shot and killed his wife, Mattie. Upon a trial in the Mercer Circuit Court, to which the venue was awarded on appellant's application for a change, he was convicted, and sentenced to life imprisonment in the penitentiary, and he appeals.

Appellant is a negro, and at the time of the alleged offense, he and his wife were, respectively, thirty-two and thirty-five years of age. They lived at Trenton, where he had been employed some years as chauffeur and houseboy, and she as a domestic. One child had been born to them before their marriage, and another thereafter. Difficulties had arisen between them and Mattie's stepmother, in whose home they formerly lived, and on Sunday, May 5, 1935, the date in question, appellant and his wife were living at the home of Mollie Redmond. There was evidence to the effect that on the afternoon of the day just mentioned, appellant had been drinking. He went to the Redmond home where he found Mattie and other women engaged in writing chain letters, to which he objected. He remonstrated with his wife, and accused her of forgery, in that she was improperly placing the names on the lists so as to make it appear they were entitled to receive returns in money from the recipients of such letters. He grabbed some of the letters, and destroyed them. An encounter ensued in which appellant struck his wife, and perhaps knocked her down, and she and the other women ran from the house when he produced a revolver from a suit case, and threatened to kill Mattie. Appellant then took his suit case and said he was leaving. He soon reappeared and appellant and Mattie went into the kitchen. Mollie Redmond, Mattie's aunt, was in the dining room. The door into the kitchen was closed. Soon two shots were heard and appellant came out and surrendered himself. There were no other eye-witnesses. There was evidence that appellant had threatened to kill his wife on several recent occasions. His defense was that the shooting was entirely accidental; that when he and his wife were in the kitchen, they were "making up," and he was cutting a piece of pie, when she saw he had a revolver in his pocket, and reached for it, and in the scuffle which followed, it was accidentally discharged.

Having reached the conclusion that the judgment must be reversed and the cause remanded because of what we deem to be prejudicial error which occurred on the voir dire examination of the panel of jurors, the foregoing outline of the facts will suffice. Accordingly our discussion will be limited to the incident referred to, and to a disposition of the question of jurisdiction, the other alleged errors being not likely to recur on another trial.

I. It is insisted that the judgment must be reversed outright and the defendant discharged because the circuit court was without jurisdiction to hear the case. This supposed want of jurisdiction is founded upon the claim that appellant was not accorded a "legal preliminary examination." This assertion was presented in a variety of ways — by plea in abatement, by motion to quash the information, by motion to suppress evidence, and otherwise. It will be unnecessary to notice all of the many grounds thereof. Chief reliance seems to be placed in the proposition that on the hearings of those pleas, it was shown that at the coroner's inquest the accused was compelled to testify against himself, which, coupled with the fact that the verdict of the coroner's jury was thereafter introduced in evidence at the preliminary examination, operated to destroy the jurisdiction of the circuit court. We need not concern ourselves with the effect of a violation of defendant's constitutional right not to be compelled to testify against himself (Sec. 23, Art. II, Const. of Mo.), because the evidence wholly fails to sustain any such charge. The same is true as to the claim that at and before the preliminary examination he was not permitted to advise with counsel or send for witnesses, nor consult his family or friends. There is nothing in the proposition that the court had no jurisdiction because the transcript of the testimony of the witnesses at the preliminary did not accompany the warrant of commitment, and was not delivered therewith to the jailer.

The two sections of the statutes dealing with the matter of preserving and certifying the evidence in homicide cases are Sections 3480 and 3489, Revised Statutes 1929 (Secs. 3480, 3489, Mo. Stat. Ann., pp. 3115, 3118). They provide, respectively, as follows. "In all cases of homicide, but in no other, the evidence given by the several witnesses shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses respectively." "All examinations and recognizances taken in pursuance of the provisions of this article shall be certified by the magistrate taking the same, and delivered to the clerk of the court in which the offense is cognizable, on or before the first day of the next term thereof, except that where the prisoner is committed to jail, the examination of himself and of the witnesses for or against him, duly certified, shall accompany the warrant of commitment, and be delivered therewith to the jailer." (Italics ours.)

It is the italicized portion above which is here invoked. But one of the main difficulties with appellant's position is that it has been expressly held that the requirements of these sections are not jurisdictional. [State v. Smith (Mo.), 228 S.W. 1057; State v. McDaniel, 336 Mo. 656, 80 S.W. (2d) 185.] In the Smith case the examination was neither signed by the witnesses nor certified by the justice, and a copy thereof did not accompany the commitment. It was there pointed out that, "the purpose of the statute is to secure to a defendant a fair preliminary examination and to preserve the evidence taken." A stipulation to the effect that the testimony might be taken by the stenographer and a copy thereof delivered to each party was held to be a waiver of the requirements of the statute with respect to certification and return of the examination.

The evidence in this case shows that the preliminary was held May 10, 1935; that the testimony of the witnesses thereat was reduced to writing, and thereafter subscribed and sworn to by them, and on May 29, filed in the office of the circuit clerk. It was stipulated that a copy thereof was furnished to counsel for appellant on the day of their appointment as such by the court, which was June 1, the first day of the next ensuing term of the Grundy Circuit Court. A plea in abatement was filed on June 8, which made no complaint of, or reference to the omission of the examination to accompany the warrant of commitment, and being delivered therewith to the jailer. After his plea was overruled, appellant later, on June 24, filed another such plea which embraced, for the first time, the irregularity now relied on.

In State v. Ancell, 333 Mo. 26, 62 S.W. (2d) 443, the testimony of the witnesses was not signed before the examining magistrate, but before his successor in office. This and the further fact that the justice's transcript filed in the circuit court was not a copy or transcript of his docket entry was held not to invalidate the preliminary examination. It was there said, "In the instant case it is not contended that defendant was not in fact accorded a preliminary examination. His own proof shows that he was and that the magistrate in due time certified the same to the circuit court. There is no contention nor any evidence tending to show that defendant was in any way prejudiced by the failure of the examining magistrate to enter the proceedings in his docket. To hold in such circumstances that the prosecuting attorney was without authority to file and the circuit court to proceed upon an information would be to make such authority and jurisdiction dependent, not upon the fact...