State v. Clevenger

• Decision Date: 08 May 1900
• Citation: 56 S.W. 1078,156 Mo. 190
• Parties: STATE v. CLEVENGER.
• Court: Missouri Supreme Court

56 S.W. 1078

156 Mo. 190

STATE v. CLEVENGER.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

CRIMINAL LAW — APPEAL AND ERROR — CHANGE OF VENUE — TRIAL — INSTRUCTIONS.

1. The granting of a change of venue in a criminal case is within the discretion of the trial court, and will not be reviewed in the absence of a showing that such discretion has been abused.

2. Rev. St. 1899, § 2578, requires that an application for a change of venue shall be made at the term when the indictment is found, if the defendant is in custody. Section 2579 provides that, if the application shall state that the facts on which he grounds his application shall have first come to his knowledge since the last preceding continuance of the cause, it may be made at a term subsequent to that at which the prisoner was likely to be arraigned. Held, that the application made by defendant in custody after two continuances, on the ground of prejudice of the inhabitants of the county, in which no statement is made as to such grounds coming to his knowledge after the last continuance, is insufficient.

3. An instruction that the law presumes a man to be sane until the contrary is shown, and imposing the burden of proving insanity as a defense to crime on those who assert it, is not erroneous.

4. An instruction that voluntary intoxication is not an excuse for crime, even though resulting in temporary frenzy or insanity, is not erroneous.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Ernest Clevenger was convicted of murder in the first degree, and appeals. In the motion for a new trial the tenth and eleventh instructions objected to by defendant are as follows: "No. 10. You are instructed that the law presumes a man to be sane until the contrary is shown; and the burden of proving defendant's insanity is upon those who assert it, and, unless they have shown such insanity to the reasonable satisfaction of the jury, then they have failed to establish defendant's insanity. No. 11. You are instructed that voluntary intoxication is no excuse for the commission of a crime. Therefore, although you may believe from the evidence that the defendant was drunk, or under the influence of liquor, at the time the fatal shot was fired, yet this fact does not justify, excuse, or palliate the alleged crime, nor does it reduce the degree thereof. And even though the jury may believe from the evidence that at the time of the killing the defendant was laboring under a temporary frenzy or insanity, yet if the jury believe from the evidence that such temporary frenzy or insanity was then and there the immediate result of intoxicating liquors which the defendant voluntarily drank while sane and responsible, still this does not relieve the defendant of the responsibility for the alleged crime, nor does it reduce the degree thereof." Affirmed.

Theo. Emerson and Jas. C. Davis, for appellant. Edward C. Crow, Atty. Gen., Sam. B. Jeffries, and Frank H. Trimble, for the State.

BURGESS, J.

At the February term, 1899, of the circuit court of Clay county, defendant was indicted for murder in the first degree for having theretofore at said county shot and killed with a pistol one George Allen. The cause was then continued to the following June term of said court. At this term, on application of defendant, the cause was continued until the November term, 1899, of said court. On the first day of this term defendant was duly arraigned, and pleaded not guilty. He then filed a motion for a change of venue, alleging that the minds of the inhabitants of Clay county were so prejudiced against him that he could not have a fair trial therein. The application was overruled, and defendant put upon trial. He interposed the defense of insanity. The jury found him guilty of murder in the first degree. From the judgment, defendant appeals.

It is disclosed by the record that at the time of, and for some months before, the homicide, defendant was engaged to be married to one Jennie Clevenger, whose father was his second cousin, and at whose house he made his home for some time, but finally left there, and was living with a near neighbor at the time of the killing. In the meantime George Allen began paying attention to Jennie Clevenger, much to the discomfort and annoyance of defendant; so much so that upon one occasion defendant remarked to her that if she married Allen "they would never have no peace." And upon another occasion, in a conversation with one James McAfee with respect to Allen's having a better time with the girls than they did, defendant said, "Yes, if he isn't careful he will get shot in two." On the evening of the homicide there was preaching in the neighborhood at a school house called the "Clevenger School House," to which defendant went that evening, riding upon horseback behind one Charles West, upon the same horse. When they reached there, neither Allen nor Jennie Clevenger was there, and defendant remained but a short time, when he and West again mounted their horse, and rode off, taking the road which led east. They had not gone far until they met Allen and Jennie Clevenger in a...