State v. Brookshire

• Citation: 353 S.W.2d 681
• Decision Date: 08 January 1962
• Docket Number: No. 48488,No. 2,48488,2
• Parties: STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant
• Court: United States State Supreme Court of Missouri

Page 681

353 S.W.2d 681

STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant.

No. 48488.

Supreme Court of Missouri, Division No. 2.

Jan. 8, 1962.

Motion for Rehearing or for Transfer to Court en Banc Denied

Feb. 12, 1962.

W. A. Brookshire, Columbia, Richard K. Phelps, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Robert E. Hogan, Sp. Asst. Atty. Gen., for respondent.

PER CURIAM.

W. A. Brookshire, charged with the offense of murder in the first degree, was convicted of manslaughter and sentenced to three years' imprisonment for the killing of Ralph Collings, one of his farm hands, at defendant's farm home about ten miles south of Columbia, Boone County, Missouri. He has appealed. The main contentions in his brief question the jurisdiction of the trial court, the overruling of certain motions on behalf of defendant, the admissibility of certain evidence, the submissibility of the State's case, and the court's action with respect to instructions, given and refused.

I. Defendant contends the order granting a change of venue from Boone to Cole County conferred no jurisdiction on the Circuit Court of Cole County because under his application for a change of venue the judge of the Boone County Circuit Court was disqualified to make any order except an order disqualifying himself. Boone and Callaway Counties comprise the Thirteenth Judicial Circuit. Section 478.107. ¹ Defendant, who had been a Superintendent of Schools, a State Senator, a practicing lawyer, now retired, and a farmer, in an 'Application for Change of Venue,' filed November 29, 1959, alleged, among other things, that: 'The opposite party has an undue influence over the mind of the Hon. W. M. Dinwiddie, Judge of this court'; that, in effect, the defendant and the prosecuting attorney had orally agreed the defendant could not have a fair and impartial trial in Boone or Callaway County, and prayed for 'a change of venue to some county and some court where this prejudice does not exist.' The Court, on said day in the presence of defendant and the prosecuting attorney, entered an order transferring the cause to the Circuit Court of Cole County. Defendant interposed no objection to this order, and so far as disclosed of record, was satisfied with the result obtained.

The granting of a change of venue of the place of trial is a statutory privilege which may be waived. Error on such an application is a matter for preservation in the court granting the change. The point when first made on appeal is too late to avail. State v. Gamble, 119 Mo. 427, 24 S.W. 1030, 1031(1); State v. Ottinger, Mo., 36 S.W.2d 942. See State v. Bailey, 344 Mo. 322, 126 S.W.2d 224, 228[6-10], cited by defendant. In State v. Perkins, 339 Mo. 27, 95 S.W.2d 75, 76[1-4], Court en Banc held the right to disqualify a judge, like an application for a change of the venue of the place of trial, is a privilege which may be waived either before or after the order has been entered. State v. Hampton, Mo., 172 S.W.2d 1, 2[1, 3], states: 'Appellant, by filing a motion for continuance in the court to which the cause was transferred, waived any irregularities in the transfer.' State v. Nave, 185 Mo. 125, 84 S.W. 1, 3, 4. This defendant invoked the jurisdiction of the Circuit Court of Cole County by filing seven motions for affirmative relief, including the granting of a continuance of the trial of the case. Defendant's contention is overruled.

II. In connection with the foregoing defendant also asserts the Circuit Court of Cole County erred 'in refusing the Defendant the right to file an application for a change of venue.' Defendant's brief states: 'this part of the proceeding is not in the transcript.' This transcript is approved by, among others, defendant and his attorney. We are bound by the transcript of the record certified here and matters not shown therein cannot be considered or determined. State v. Whitaker, Mo., 312 S.W.2d 34, 37.

III. Defendant alleges in his motion for new trial: 'The court committed error in denying defendant's motion to suppress evidence for the reason that the record shows that the defendant was taken into custody without a warrant and without any reason, and in face of the fact that all the evidence pointed to justifiable homicide and should have been exonerated at the preliminary examination.' Defendant's motion sought to suppress evidence relating to the cartridge cases, bullets and pistol found in and taken from his home. He cites 'U.S. Constitution, Arts. IV and V of Amendments; Constitution of Mo., Art. I, Secs. 15 and 19; Mapp v. Ohio,' 367 U.S. 643, 81 S.Ct. 1684[3-5], 6 L.Ed.2d 1081.

The record before us preserves no evidence or proof offered in support of said motion and there is nothing upon which to predicate prejudicial error as the allegations in said motion do not prove themselves. State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 887[16, 17], rules this issue against defendant.

Furthermore, defendant voluntarily testified at the trial that he got 'this gun' and shot Collings. The difference between his and the State's position is that he contends the homicide was justifiable and the State contends it was manslaughter. In view of defendant's admissions he may not now successfully urge prejudicial error. State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 140[2, 3], and authorities cited; State v. Bray, Mo.App., 278 S.W.2d 49, 52; Annotation, 50 A.L.R.2d 570, Sec. 8, b.

The State answers this contention on defendant's presentation. In Mapp, supra, seven or more officers forcibly broke into and searched defendant's home under asserted authority of a warrant to search for lascivious books, pictures and photographs, but no search warrant was produced or accounted for at the trial. The Mapp case involved constitutional provisions against unreasonable searches and seizures without a valid search warrant. See Mo.Const. Art. I, Sec. 15, V.A.M.S. The record before us involves a search incidental to a lawful arrest. This has been recognized as proper by federal courts. Harris v. United States, 331 U.S. 145, 150-153, 67 S.Ct. 1098, 91 L.Ed. 1399[6-10]; Annotation, 4 L.Ed.2d 1983, Secs. 2, 5, 7. The evidence at the trial, upon which the State relies, justified the action of the officers. When they arrived, defendant invited them in, led them to the kitchen and showed them the dead body, stating the man had been shot. However, when asked who shot him; who the man was; and where the gun was, defendant refused to answer but demanded that a jury be brought out and they would have a hearing. Defendant did not accuse anyone else of the shooting and was placed under arrest within ten minutes after the officers arrived. The officers had probable cause to believe that defendant had committed a felony. State v. Edwards, Mo., 317 S.W.2d 441, 445[2, 3]. Deputy Sheriff Lukehart took defendant to jail in Columbia, secured a coroner's jury and returned with the jury to defendant's farm in about an hour. Deputy Sheriff Duncan and Coroner Perna remained at the farm and assumed control of the premises. Nothing had been disturbed and the members of the jury were cautioned to avoid disturbing anything. After the jury viewed the scene, the officers searched the house, which was in defendant's possession at the time of his arrest, picking up the cartridge shells (seen on the dining room floor upon their arrival), three bullets in the kitchen, and defendant's automatic pistol in an upstairs bedroom in the course of their investigation. This search for things connected with the crime for which defendant was arrested was incidental to his arrest. State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743, 745[2, 3], citing cases, and authorities supra. Clearly, defendant's presentation does not establish the asserted error.

IV. Defendant in his brief alleges the court erred in overruling his motion to produce a signed written statement made on May 25, 1959, by witness Harvey Beavers. We fail to find this point presented to the trial court in defendant's motion for new trial (Sup.Ct.R. 27.20, V.A.M.R.; Section 547.030), and, first presented in defendant's brief, it is not preserved for review. State v. Wilson, 361 Mo. 78, 233 S.W.2d 686; State v. McCarthy, Mo., 336 S.W.2d 411, 416[4, 8]. In addition, defendant states in his brief that the statement 'evidently was favorable to the defendant'; but there is no evidence or proof offered in connection with said motion in this record and, hence, nothing upon which to predicate prejudicial error. Consult State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85[1, 7]; State v. Kelton, Mo., 299 S.W.2d 493, 497[8, 9].

V. On the morning of April 27, 1960, following a motion to quash the jury panel filed April 26, 1960, and, we understand, the making of the peremptory challenges, defendant filed a motion to quash the twelve-member jury, alleging it was selected from a panel not properly impanelled according to law; selected after improper statements and questions by the State on the voir dire examination; and selected after prejudicial statements concerning defendant by veniremen on voir dire examination. The court overruled. Defendant claims error. The State does not question this procedure (see State v. Logan, 344 Mo. 351, 126 S.W.2d 256[1-3], 122 A.L.R. 417), but answers defendant's complaint. During the course of the voir dire examination defendant had ample opportunity to protect his rights if the court abused its discretion in any respect. There was no showing of any improper action excluding Negroes from the panel (Logan, supra), if defendant, of the white race, may raise that issue. Defendant in his brief states that pages 26 to 120 of the transcript disclose that 'in many instances extreme prejudice was shown against the Defendant.' Neither this court nor the trial court is required to read the record and speculate what particular instance (or why it constituted prejudicial error) defendant had in mind as falling within a...