State v. Boone
| Citation | 70 Mo. 649 |
| Parties | THE STATE v. BOONE, Appellant. |
| Decision Date | 31 October 1879 |
| Court | United States State Supreme Court of Missouri |
Appeal from Andrew Circuit Court. The case was tried before N. B. GIDDINGS, ESQ., sitting as Special Judge.
REVERSED.
C. F. Booher, Silas Woodson and Heren & Son for appellant.
David Rea and J. L. Smith, Attorney-General, for the State.
The defendant was indicted in the Andrew county circuit court at its August term, 1873, and charged therein with stealing two mules, the property of Newton Bird, and also in a second count with receiving said mules knowing them to be stolen. Defendant was put upon his trial at the April term, 1879, of said court, and was convicted on the first count of said indictment and sentenced to three and one-half years imprisonment in the penitentiary. Motions in arrest of judgment and for new trial having been overruled, defendant appealed to this court. The first ground of error assigned is to the action of the court in overruling the following petition and application of defendant for a change of venue, filed on the 8th day of April, 1879, to-wit: “The petition of Hezekiah W. Boone, defendant herein, represents that defendant and affiant is indicted in Andrew county circuit court charged with the crime of grand larceny; that your petitioner and affiant has good reason to believe, and does believe, that he cannot have a fair and impartial trial in Andrew county, aforesaid, for the reason that the inhabitants of said county are prejudiced against this defendant and affiant, so as to preclude a just and fair trial; and this affiant states that the same grounds and reasons, as this affiant believes, exist in the counties of Nodaway, Holt and Atchison; therefore this affiant prays that a change of venue may be ordered in said cause, to some judicial circuit where said causes do not exist; that these causes have more fully come to the knowledge of defendant since the last adjournment o this court.” Said application was duly sworn to and certified.
It is admitted that this is second application for a change of venue based on the ground of the prejudice of the inhabitants of Andrew county, the first application having been made and overruled on the 8th day of April, 1874. On the hearing of the second application a great deal of evidence was offered both in support of and against the fact alleged as to the prejudice of the inhabitants, which it is unnecessary to review, as we consider the second application fatally defective on other grounds.
The statutory provisions relating to changes of venue for such causes as are alleged, are as follows: Section 16. “Any criminal cause pending in any circuit court may be removed by order of such court or the judge thereof, to the circuit court of another county in the same circuit, provided that the minds of the inhabitants of the county in which the case is pending, are so prejudiced against the defendant that a fair trial cannot be had therein.” Wag. Stat., 1097. Section 22. “No order for the removal of any cause shall be made on the application of the defendant for the causes specified in the 16th or 17th sections of this chapter unless such application be made during the term of the court at which the indictment is found, provided said defendant be in custody or on recognizance, and if not so in custody or held to bail, then the application may be made at or before the first term after the defendant shall have been arrested, and not thereafter, except as provided in the next succeeding section.” Section 23. “If the defendant will, in addition to the oath requisite in ordinary and timely applications, swear that the facts on which he grounds his application have first come to his knowledge since the last preceding...
To continue reading
Request your trial
-
State v. McCann
... ... not error because the application and affidavits were not ... sufficient and did not state or show that the knowledge of ... the alleged prejudice came to the defendant after the last ... adjournment of the prior term of the court. State v ... Boone, 70 Mo. 649. In order to save an exception to an ... adverse ruling of the trial court, on motion or otherwise, at ... a term when the cause is not tried, such exceptions must be ... saved by a term bill of exceptions, and that it is not ... sufficient to bring such exceptions into the final ... ...
-
State v. Boyd
...has been a close one. The right to a converse instruction was upheld only by a divided vote in the first decision on that point, State v. Boone, supra decided in 1879. But nevertheless, prior to 1919 when State v. Levitt, 278 Mo. 372, 378(3), 213 S.W. 108, 109 was decided, the doctrine seem......
-
State v. Moore
... ... State v. Underwood, ... 75 Mo. 234. (7) The eighth instruction is not the law. A ... reasonable doubt may be raised as well by want of evidence, ... as by the evidence. 80 Ind. 402. The instructions asked by ... the defendant should have been given. State v ... Boone, 70 Mo. 649; McDaniel v. State, 7 S.W ... 249; Willis v. State, 6 S.W. (8) The court should have ... instructed the jury, that the defendant's possession of ... the horse is conclusively presumed to be innocent, until, by ... other evidence, the property is shown, beyond a reasonable ... ...
-
State v. Lehman
...evidence on his application for a change of venue and in denying said application. R. S. 1899, secs. 2576, 2577, 2578 and 2579; State v. Boone, 70 Mo. 649. (2) The indictment double, because it joins in one count nineteen separate and distinct offenses. If it is not double, it states no off......