State v. Burgess
| Decision Date | 30 April 1883 |
| Citation | 78 Mo. 234 |
| Parties | THE STATE v. BURGESS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court.--HON. GEO. W. DUNN, Judge.
AFFIRMED.
J. E. Merryman, R. P. C. Wilson and S. C. Woodson for appellant.
D. H. McIntyre, Attorney General, for the State.
The defendant, George E. Burgess, was indicted for the murder of Caples Burgess. He was tried at the March term, 1883, of the Platte circuit court, found guilty of manslaughter in the second degree, and sentenced to imprisonment in the penitentiary for a term of five years, and he has appealed from the judgment.
At the same March term he presented his petition for a change of venue, alleging that the inhabitants of Platte county were so prejudiced against him that he could not have a fair trial in that county. Witnesses were introduced by defendant to establish the fact alleged in his petition, and by the State in rebuttal, and defendant complains that witnesses called by the State were permitted to give to the court their opinion that defendant could have a fair trial in Platte county, and that one of said witnesses, R. L. Waller, was permitted to state that any man could obtain a fair trial in that county. The witnesses for defendant had testified in relation to the feeling in the county against the defendant, as indicated by expressions they had heard from the inhabitants in regard to the case. They expressed no opinion, except one Cockrell, who thought defendant could have a fair trial. Some of the witnesses for the State said nothing as to the fact of prejudice existing against defendant or not, but merely expressed their opinion that defendant could have a fair trial; others, six in number, Shouse, Garvin, Todd, Carson, Hull and Cecil, that they had heard but little about the case and knew of no prejudice against defendant, and Cockrell, one of defendant's witnesses, also stated that defendant could have a fair trial. The court refused the application.
The trial of the issue made on a petition for a change of venue, is by the court, and unless manifest error occur on the trial of that issue, to the prejudice of the accused, we cannot interfere with the finding of the court. There was evidence to sustain the finding.
It was error to take the opinion of witnesses, as was done in this case, yet, under the circumstances, it was not such an error as would justify a reversal of the judgment. Whether the alleged prejudice exists or not, is a matter of fact. The witnesses for the State may have believed, or known the facts, testified to by defendant's witnesses, and yet entertained the opinion expressed by Waller, that any man could obtain a fair trial in Platte county. It was not for witnesses to say, whether the inhabitants of that county, notwithstanding their prejudice against the accused, could rise above it in the jury box, and deal fairly and impartially with the defendant. It must be such a prejudice as will prevent a fair trial, but the extent and character of the prejudice are facts upon which the court is to determine whether it is such prejudice as will prevent a fair trial. The facts are to be testified to by witnesses, and the opinion is to be formed by the court on the facts. If there had been no other evidence for the State on that issue, but that of these witnesses, we are inclined to the opinion, that the change of...
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