State v. Doerries

• Decision Date: 17 February 1913
• Citation: 153 S.W. 1062
• Parties: STATE v. DOERRIES.
• Court: Missouri Court of Appeals

153 S.W. 1062

STATE v. DOERRIES.

Kansas City Court of Appeals. Missouri.

February 17, 1913.

1. CRIMINAL LAW (§ 655) — IMPROPER REMARKS BY JUDGE.

On an application for a change of venue on account of alleged prejudice of the judge, it was improper for the judge to whom the application was made to deliver a lengthy address in the presence of the jury on the evil practice of applications for changes of venue, of such a character as naturally to prejudice the jury.

2. CRIMINAL LAW (§ 1144) — APPEAL — PRESUMPTIONS.

Where an indictment was lost and the record sets out all that was done, it cannot be presumed that a motion for supplying the lost record was filed, or that any judgment or order supplying it was made.

3. CRIMINAL LAW (§ 979) — LOSS OR DESTRUCTION.

A conviction under a lost indictment cannot be sustained, in the absence of any judgment or order for supplying the lost record.

Appeal from Circuit Court, Calloway County; N. D. Thurmond, Judge.

A. V. Doerries was convicted of disturbing the peace, and he appeals. Reversed.

Robertson & Robertson, of Mexico, Mo., for appellant. J. W. Tincher, Pros. Atty., of Fulton, for the State.

ELLISON, P. J.

Defendant was indicted and convicted of the offense of disturbing the peace. He appealed to this court, and we transferred it to the Supreme Court on account of a constitutional question. That court thought the question not properly raised, and returned the record to this court (147 S. W. 483).

A change of venue was asked in the trial court on account of alleged prejudice of the judge. The change was granted and another judge called in. The judge to whom the application was made delivered a lengthy address, in the presence of the jury, on the evil practice of applications for changes of venue. The exceedingly spirited character of the criticism was such as naturally to prejudice the jury. Doubtless the privilege of a change of venue, intended as it is for a just and beneficent purpose is frequently abused. But the time of the criticism objected to was unfortunate. We passed upon an identical question in an opinion by Judge Johnson in which it was held to be prejudicial. State v. Wright, 161 Mo. App. 597, 144 S. W. 175.

It seems the indictment was lost and the trial is supposed to have proceeded upon one supplied. Unlike the case of State v. Walker, 167 Mo. loc. cit. 369, 67 S. W. 228, we cannot presume anything in this case, for the record sets out all that was done, and it does not appear that...