State v. Brownfield

• Decision Date: 31 October 1884
• Citation: 83 Mo. 448
• Parties: THE STATE v. BROWNFIELD, Appellant.
• Court: Missouri Supreme Court

83 Mo. 448

THE STATE

v.BROWNFIELD, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Henry Circuit Court.--HON. J. B. GANTT, Judge.

AFFIRMED.

Foster P. Wright for appellant.

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

The granting or refusing the change of venue was a matter strictly in the discretion of the trial court, and the whole question is submitted to that court. State v. O' Rourke, 55 Mo. 440; State v. Whitton, 68 Mo. 91; State v. Guy, 69 Mo. 431. The record fails to show that defendant saved his exceptions to the action of the court in overruling his objections to the qualifications of certain jurors and this court will not review the point. Harrison v. Bartlett, 51 Mo. 170; State v. Williams, 77 Mo. 310; R. S., 1879, § 1921. The court did not err in denying the motion for a change of venue on account of the prejudice of the judge. It was not supported by the affidavits of two or more reputable persons.

NORTON, J.

At the March term, 1884, of the Henry county circuit court, the defendant was indicted jointly with one Frank Hopkirk for murder in the first degree for killing John E. Wells, on the 29th day of February, 1884. Upon the application of the parties charged on the 12th of September, 1884, a severance was granted. Defendant was put upon his trial on the 29th of September, 1884, which resulted in his conviction of murder in the first degree, and after making an unsuccessful motion for a new trial and in arrest of judgment brings the case here by appeal.

Of the many grounds alleged in the motion for a new trial, the counsel in their brief rely only on the following:

First, that the court erred in refusing to grant an application for change of venue, based on the ground that the minds of the inhabitants of the county were so prejudiced against defendant that he could not have a fair trial therein. Second, that the court erred in overruling defendant's application for a change of venue, based upon the prejudice of the judge. Third, that the court erred in overruling defendant's challenge, for cause, of certain jurors, who upon their voir dire examination stated that they had formed an opinion from reading in a certain newspaper, what purported to be the evidence before the coroner, and the confession of Hopkirk, and who said they still had such opinions, but that they were conditional, and they could impartially try the cause on the evidence notwithstanding such opinions. These objections will be considered in the order of their statement.

I. When a change of venue is applied for on account of the prejudice of the inhabitants of the county, the statute provides that the petition of the applicant for a change of venue shall set forth the facts or the grounds upon which such change is sought, and the truth of the allegations thereof shall be proved to the satisfaction of the court by legal and competent evidence, etc. In the case of the State v. Whitton, 68 Mo. 91, it was held that the trial court did not err in refusing to grant a change of venue on account of prejudice, it being observed that witnesses were examined both on the side of the state and the appellant, and the court, upon the evidence adduced, found that the alleged prejudice did not exist and that the finding was conclusive. In the case of the State v. Guy, 69 Mo. 430, it was held that this court would not interfere with the action of the trial court in refusing a change of venue, asked on account of prejudice of the inhabitants of the county, unless it appears that palpable injustice has been done. The case of the State v. Burgess, 78 Mo. 235, is to the same effect.

In the case before us, the record shows that ten witnesses on behalf of defendant were examined on the question of the prejudice of the inhabitants and a like number on the part of the state; while the evidence of some of the witnesses tended to show that in Windsor and vicinity, near where deceased lived and was killed, and which town is located in the northeast corner of the county, near the lines of Benton, Pettis and Johnson counties, the general opinion was that defendant was guilty and there was talk of mobbing defendant, and while the evidence also tended to show that in the town of Clinton the tragedy was generally discussed, an account of which had been published in the county papers, with large circulation, and like expressions of defendant's guilt were made; the evidence, also, tended to establish the fact that in other parts of the county the matter was not generally discussed and that the witnesses had heard but few express themselves on the guilt or innocence of the accused. Not one of the witnesses examined on either side said he believed that defendant would not get a fair trial on account of prejudice. In this state of the evidence we cannot say that the court in overruling the application of defendant abused its discretion, and it is only when it appears that such discretion has been palpably abused that we can interfere under the ruling of this court in the cases above cited.

II. It is insisted that error was committed in overruling the following application of defendant: “Now here comes the defendant herein and moves the court to grant him a change of venue for the reason that the judge of this court is incompetent to hear and try this cause, first, because he is prejudiced against this defendant to such an extent that he cannot have before him a fair trial, and, second, because he will not afford him a fair trial and will not impartially rule in this case.” This application was signed by defendant and sworn to by him, but was not supported by the oath of two or more reputable persons, and for the lack of such supporting affidavits the trial court overruled the application. We are of the opinion that the ruling of the court was correct for the following reasons: Section 1877, Rev. Stat. (...