State v. Callaway

• Decision Date: 06 February 1900
• Citation: 154 Mo. 91,55 S.W. 444
• Parties: STATE v. CALLAWAY.
• Court: Missouri Supreme Court

55 S.W. 444

154 Mo. 91

STATE v. CALLAWAY.

Supreme Court of Missouri, Division No. 2.

February 6, 1900.

HOMICIDE — TRIAL — CONTINUANCE — BILL OF EXCEPTIONS — TRANSFER OF CAUSE — PRESUMPTION — CHANGE OF VENUE — EVIDENCE — PASSION — PROVOCATION — MOTIVE.

1. Where applications and affidavits filed for a continuance were not preserved in the bill of exceptions, though the bill shows that exceptions were taken to their denial, they cannot be considered on appeal.

2. Where the record shows a cause to have been transferred from one division of the circuit court to another, it will be presumed on appeal to have been properly transferred.

3. An improper transfer of a cause from one division of the circuit court to another does not abate the jurisdiction of the court to which it was transferred, when no exception was saved at the time of making the order to transfer.

4. Under Laws 1895, p. 162, requiring that a petition for change of venue be supported by the affidavit of at "least two credible disinterested citizens" of the county where the cause is pending, affidavits describing the affiants as "reputable citizens," and not stating their place of residence, were insufficient.

5. Under Acts 1895, p. 162, requiring that a reasonable previous notice of application for a change of venue be given the prosecuting attorney, an application was properly refused where no such notice was given.

6. Where, on a transfer of a cause from one division of a circuit court to another, defendant's witnesses who had been summoned were ordered to appear before the division to which the cause was transferred, such transfer constituted no ground for a continuance.

7. One change of venue having been granted on grounds of prejudice of the judge, a second change on the same grounds was not allowable.

8. Where defendant made a sudden and unprovoked attack on his wife, saying that he would kill her, and was only prevented from doing so by the interference of others, and frequently thereafter made threats against her, saying that, before she should have a divorce for which she had applied, he would ruin her name (though admitting that she was guiltless), and threatening to make way with her, and finally entered a store where she was working, and, after talking with her a few minutes, without provocation drew a pistol and shot her, seized her by the shoulder and fired again, and then deliberately walked around the counter, behind which she had fallen, and fired three more shots into her body, after which he coolly surrendered himself, such facts were sufficient to justify a verdict of murder in the first degree.

9. Since the only circumstances which justify an instruction for manslaughter in the killing of a wife by the husband are where the wife was taken in adultery, or encountered immediately after she had quitted the company of her paramour, it was error to instruct that if defendant, at the time of killing his wife, was so far under the influence of passion aroused by "any" previous conduct of the deceased as to make him incapable of thinking coolly of the natural results of his acts, he was guilty of manslaughter in the fourth degree.

10. An instruction on the theory that defendant killed his wife in heat of passion provoked

by her conduct, when there was no evidence of provocation, and none that the killing was otherwise than premeditated and with malice aforethought, was erroneous.

11. On the trial of defendant for the killing of his wife, evidence that he had formerly assaulted her and had threatened her life, and that she had been compelled to bring suit for divorce, was competent to show malice.

12. On the trial of defendant for the killing of his wife, letters written by him to a third party, in which he had threatened to ruin her character and to sue for divorce, and showing his improper relations with other women, were admissible, as showing want of affection, thus disclosing a motive.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Frank B. Callaway was convicted of murder in the first degree, and from the judgment he appeals. Affirmed.

Maurer & Cunningham, for appellant. Edward C. Crow, Atty. Gen., for the State.

SHERWOOD, J.

The murder of his wife, and his conviction and sentence therefor, cause this appeal by defendant. Before proceeding to discuss the cause on its merits, necessity exists that disposition be made of some matters preliminary to the main issue. And in this discussion, prefatory and otherwise, it is proper to say that no counsel appeared in this court on behalf of defendant, and that, though counsel were granted one month's time in which to prepare a brief, none has been filed. We are left, therefore, to the record alone to determine whether error is to be found therein; and so we will examine the various steps which were preserved in the bill of exceptions, and, in passing, advert to others not thus preserved.

The record proper shows that this cause was assigned by the circuit judges of St. Louis, in general term, to division No. 9 of that court. It also shows that on defendant's application the cause was transferred, by change of venue, to division No. 8 of that court, over which Judge Talty presides. A motion was filed by defendant, it seems, to dismiss the cause "for the reason that the court has no jurisdiction of said cause, for the reason that the transcript of the proceedings had in division No. 9, presided over by the Honorable Jacob Klein, has not been filed herein according to law." Before this motion was passed upon, however, the transcript was filed, and the motion was denied, but no exception was saved to such denial. As to applications and affidavits for a continuance filed by defendant and others, it is enough to say that these applications have not been preserved in the bill of exceptions, and in consequence cannot be noticed by us, though the bill of exceptions shows that defendant excepted to the applications being denied. If defendant desired successfully to charge the court with error in denying such applications, he should have preserved them, and then we could have examined into their sufficiency; otherwise, not, as there is no presumption in favor of the validity of such papers. And it is well enough to say that, the record having shown that the cause was transferred from division 9 to division 8, it will be presumed to have been properly, and not improperly, done; and, even if improperly done, this would not abate by one jot or one tittle the jurisdiction of division 8 of that court, if, as is the case here, no exception was saved at the time of making the order. State v. McKee, 150 Mo. 233, 51 S. W. 421. And the act of 1895, as construed by this court in State v. Thompson, 141 Mo., loc. cit. 413, 414, 42 S. W. 950, fully authorized the transfer of the cause from division 9 to division 8. Nor is there anything in the act of March 26, 1895, which gives countenance to the idea that, after a cause has been assigned to a division of the court by the general term, there must be a reassignment when the cause is to be transferred to another division. As all witnesses who were summoned to appear in division No. 9 were ordered by that division to appear before division No. 8, they were, in contemplation of law, summoned to appear before the latter division, and hence there was no excuse for defendant not being ready for trial. He either had or had not his witnesses subpoenaed to appear before No. 9, and, if he had not, that would be an entire lack of diligence on his part, and therefore he could not complain; and certainly the mere say-so of attorneys, that they were not ready to proceed with the trial of the cause, counts for nothing.

Relative to the change of venue applied for before division No. 8 on the alleged ground of the prejudice of the judge, a change of venue having been applied for, for the same reason, before Judge Klein, and granted, a second change was not allowable. State v. Anderson, 96 Mo. 241, 9 S. W. 636. Besides that, the petition for the change of venue was not proven as required by the amendatory act of 1895 (Laws 1895, p. 162). State v. Tatlow, 136 Mo. 678, 38 S. W. 552. Nor was the petition supported by the affidavit of at "least two credible disinterested citizens of the city of St. Louis," as required by section 2 of that act. The affiants in this case only describe themselves as "we, the undersigned, reputable citizens, not of kin," etc.; not giving their place of residence, nor describing themselves as "credible disinterested citizens." Such supporting affidavit would be bad even under the old section 4156 in the revision of 1889. Nor was any notice given of the intended application for the change, as also required by the original section, as well as by the amendatory one given. The application for a change of venue on any one of the grounds mentioned was therefore properly denied.

Having disposed of the preliminary questions in this cause as above set forth, it is in order to discuss those features of it which pertain to its merits. The evidence, in outline, is this:

The defendant, a young man about 25 years of age, was the son of Mr. and Mrs. Samuel Callaway, of Fredericktown, Mo., where the defendant was reared. The parents sent him to St. Louis, Mo., to attend the Missouri Medical College, and while attending this school, in 1895, he met Anna P. Callaway, his wife, who was then a school girl of about 16 years of age, in St. Louis, Mo., and who lived with her sister and her sister's husband, Mr. and Mrs. Hawkins. The defendant and she were married while the defendant was yet attending the medical school in St. Louis, Mo., and went to live with her sister, Mrs. Hawkins. The parents of the defendant sent the money from time to time to pay the board of the defendant and his wife, up to the summer of 1898, when, from some cause, about August, the remittance did not come to pay the board; and the sister-in-law, Mrs. Hawkins, and her...