State v. Cox

• Decision Date: 30 April 1877
• Citation: 65 Mo. 29
• Parties: THE STATE OF MISSOURI v. COX, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 29

THE STATE OF MISSOURI

v.COX, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Barry Circuit Court.--W. F. GEIGER, Judge.

Lay & Belch, for appellant, cited McKay v. The State, 12 Mo. 492 ;Wheeler v. The State, 14 Ind. 573 ;Kelly's Crim. Prac. § 49 ; 1 Greenl. Ev. § 218, note.

J. L. Smith, Att'y Gen'l, for the State. Where a witness to a murder acts in such a manner as to unmistakably evince a design to encourage, incite, approve of, or in some manner afford aid or comfort or consent to the act, he is as guilty as the principal.

1. PRACTICE, CRIMINAL: want of prosecution: discharge of prisoner: change of venue.

NAPTON, J.

At the October term, 1875, of the circuit court of Christian county, the appellant Cox, with others, was indicted for the murder of one Davis, on the 11th of December, 1873. The record shows that Cox applied for a change of venue at this term, and upon this application the case was sent to Barry county, where the papers were filed on the 20th of May, 1876. The Barry circuit court is held, as the statute shows, on the second Mondays in April and October. At the October term of the circuit court in Barry county, the case was continued at the instance of the circuit attorney. The record states that this continuance was allowed for good cause, but does not show that the defendant was in court or apprised of the application by any notice to him or his attorney. At the April term, 1877, the case was tried, the defendant was convicted and sentenced to be hanged. The record proper in this case, which is nearly illegible, gives no information whatever as to the time when Cox was arrested. It appears that he was present at the October term, 1875, of the Christian county circuit court, since he then applied in person for a change of venue. Whether he was in confinement or on bail does not appear. The evidence of one Mitchell, as preserved in the bill of exceptions giving the history of the trial, tends to the conclusion that Cox was captured in Texas before this term of the court in Christian county. It would seem from the testimony of another witness, who was a grand juror at the Spring term, 1874, of the Christian county circuit court, that Cox was indicted at that term. What became of that indictment does not appear. The testimony sent up to us, by the bill of exceptions in this case in regard to the killing of Davis, is substantially, indeed we may say is precisely the same as was in the case of Orr, (64 Mo. 339.) The present appellant, Cox, was in company with Orr when the murder of Davis was committed.

2. ____.

3. CHANGE OF VENUE: delay in transmission of papers: practice, criminal.

We are unable to perceive the force of the objection to the conviction in this case, based on the 27th, 28th and 29th sections of the sixth article of the act concerning criminal practice. The 27th section provides, that if any person indicted for any offense, and committed to prison, shall not have been brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner, or be occasioned by the want of time to try the cause at such second term. The 28th section provides that where the defendant is on bail, and shall not be tried before the end of the third term of the court in which the cause is pending, he shall be entitled to be discharged, unless the delay is occasioned in the same way as specified in the preceding section. The 29th section declares that when an application is made, under either of the two last sections, if the court shall be satisfied that there is material evidence on the part of the State, which cannot then be had, that reasonable exertions have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term, the cause may be continued to the next term, and the prisoner be remanded or admitted to bail, as the case may require. If the defendant shall not be tried before the end of the term last mentioned, the State shall not be entitled to any further continuance of the case, and the prisoner shall, if he require it, be discharged. It will be observed that the prisoner was tried at the second term, in Barry county, after the removal of the case from Christian county to Barry county. This removal was made on the application and at the instance of the prisoner. If any delay or neglect, on the part of the clerk of the circuit court of Christian county, occurred in transmitting the papers and records to Barry county, such neglect on the part of the clerk can hardly be attributed to any want of diligence on the part of the prosecution. The order for the change of venue, and the delay occasioned thereby, resulted from the solicitations of the defendant and were for his benefit. The first term, then, within the meaning of these provisions of the statute, was by defendant's own choice the October term, 1876, of the circuit...