State v. Drewer, 35822.

• Decision Date: 03 May 1938
• Docket Number: No. 35822.,35822.
• Citation: 116 S.W.2d 37
• Parties: STATE v. DREWER.
• Court: Missouri Supreme Court

116 S.W.2d 37

STATE v. DREWER.

No. 35822.

Supreme Court of Missouri, Division No. 2.

May 3, 1938.

Appeal from Circuit Court, Warren County; W. C. Hughes, Judge.

Lawrence Drewer was convicted of second degree burglary, and he appeals.

Affirmed.

Carl E. Starkloff, of Warrenton, for appellant.

Roy McKittrick, Atty. Gen., and Max Wasserman, Asst. Atty. Gen., for the State.

BOHLING, Commissioner.

Lawrence Drewer prosecutes this appeal from a judgment imposing a sentence of seven years' imprisonment for burglary in the second degree.

Appellant presents but one contention here, viz., the trial court erred in failing to grant appellant's application for a change of venue based on local prejudice. We think the issue may be made to turn on that portion of section 3630, R.S.1929, Mo.St.Ann. § 3630, p. 3194, reading: "Provided further, that reasonable previous notice of such application shall in all cases be given to the prosecuting attorney."

On February 8, 1937, appellant gave the prosecuting attorney notice, with a copy of the "petition" attached, of his intention to file and present an application for a change of venue on February 11, 1937. The petition as filed was supported by six affidavits; one sworn to on February 9th, three sworn to on February 10th, and two sworn to on February 11, 1937. Appellant's petition, with said affidavits attached, was filed, called up, and overruled on said February 11, 1937. State v. McCann, 329 Mo. 748, 760, 47 S.W. 2d 95, 98, speaking to the sufficiency of a notice given on January 31, 1931, of an application for change of venue filed on February 2, 1931, said:

"In order to prevent imposition and secure a fair estimate of the sentiment, the statute provides that previous reasonable notice of the application shall be given the prosecuting attorney, so that he will have an opportunity to challenge the good faith of the application, to examine each affidavit, to learn the character of each affiant and his opportunity to know the situation in the community about which he swears. * * *

"In this case the notice was given two days before the application was filed; the application and the affidavits were filed on the same day on which the motion was filed to strike out the application. The court did not rule upon whether the notice was sufficient. Manifestly, however, it was not sufficient to enable the prosecuting attorney to investigate the affiants."

And 329 Mo. 748, loc. cit. 762, 47 S. W.2d 95, loc. cit. 99(6): "...