State v. Brown
| Decision Date | 31 December 1924 |
| Docket Number | 25626 |
| Citation | 267 S.W. 871 |
| Parties | STATE v. BROWN |
| Court | Missouri Supreme Court |
J. W Hays and E. W. Nelson, both of Hannibal, and J. H Whitecotton, of Paris, for appellant.
Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty Gen., for the State.
WALKER, J., absent.
On a trial in the circuit court of Monroe county, April 25, 1923, the appellant was found guilty of a violation of section 3264, R. S. 1919, and his punishment assessed at three years' imprisonment in the penitentiary. He was indicted by a grand jury in the Hannibal court of common pleas, and change of venue was awarded from that court to the circuit court of Monroe county.
The indictment charged that on the -- day of December, 1922, defendant feloniously struck and wounded one Christina Rubison by driving his automobile carelessly and with culpable negligence and wanton disregard of human life upon her in such manner as to produce great bodily harm.
Mrs. Christina Rubison lived on the south side of Church street, in Hannibal. About 10:30 in the evening of December 10th, she and her husband were driven in the Chevrolet car of J. R. Johnson from a visit to the latter's home. He stopped his car on the north side of Church street, and the Rubisons, after he drove on, started across the street to their home. While they were in the street an Essex car, traveling at a rapid rate of speed (30 or 35 miles an hour), appeared from the west, without warning, and struck Mrs. Rubison with such force that the impact was heard by several persons in the neighborhood, including Mr. Johnson, who had driven a block away. Several persons soon arrived at the place, and found Mrs. Rubison lying unconscious in the middle of the street. She had a broken leg, two broken ribs, a wound in her head, and various cuts and bruises. The car which had struck her was traced for some distance by broken glass and by water which oozed from the radiator of the car. The trail finally led to the defendant's home, where an Essex car was found. Its fender was bent, the radiator smashed, and windshield broken. The defendant was drunk. He was thereupon arrested. The defendant did not testify and offered no evidence in his own behalf. His counsel in the trial relied, and evidently rely here, upon the propriety of certain motions which were filed in the trial court. On the evidence introduced the defendant was found guilty, as stated, and appealed from the judgment thereupon rendered.
I. The indictment in this case was returned by a grand jury in the Hannibal court of common pleas, established for the townships of Mason and Miller in Marion county. After change of venue to Monroe county, the defendant filed a motion to strike from the transcript of the record a statement that S. O. Osterhout had been appointed foreman of the grand jury, although the indictment itself is signed by S. O. Osterhout, as such foreman. This motion was overruled, and the defendant then by leave of court withdrew his plea of not guilty, and filed a plea in abatement, the chief point of which is directed to the record of the Hannibal court of common pleas, alleging, among other things, that the circuit judge presiding at that time did not order summoned the grand jury which returned the indictment.
Upon the first motion evidence was offered for the purpose of showing that the record which was then before the court was not the record which was originally entered in the court of common pleas, but was entered after the lapse of two terms of that court. The clerk of the Hannibal court of common pleas was sworn, and testified that the permanent record, which the defendant sought to have amended by striking out a portion, was made up from a minute book, judge's docket, order book, and a loose-leaf where orders were kept. The claim is that the record, as first entered, did not show the appointment of a foreman of the grand jury, but such appointment, and the court's order directing the summoning of the grand jury, appeared for the first time in what the clerk designated as the permanent record made up later. There was no attempt to show that a grand jury was not ordered, or that a foreman was not in fact appointed. The purpose of the first motion was to have the record so corrected that it would not show those facts.
This is a collateral attack upon the verity of the record then before the court, by the introduction of oral evidence as to when the record was actually entered. The record imports absolute verity and cannot be impeached in that way. State v. Taylor 171 Mo. loc. cit. 475, 71 S.W. 1005; Strobel v. Clark, 128 Mo.App. loc. cit. 56, 106 S.W. 585. The presumption of regularity and correctness applies to a record entered by the clerk, and such...
To continue reading
Request your trial