State v. Duckworth

• Decision Date: 06 July 1927
• Docket Number: No. 4253.,4253.
• Citation: State v. Duckworth, 297 S.W. 150 (Mo. App. 1927)
• Court: Missouri Court of Appeals
• Parties: STATE v. DUCKWORTH.

297 S.W. 150

STATE v.DUCKWORTH.

No. 4253.

Springfield Court of Appeals, Missouri.

July 6, 1927.

Appeal from Circuit Court, Dent County; W. E. Barton, Judge.

Clutch Duckworth was convicted of illegally possessing intoxicating liquor, and he appeals.Reversed and remanded.

Wm. P. Elmer, of Salem, for appellant.

Clyde C. Cope, Pros.Atty., of Salem, for the State.

COX, P. J.

From a conviction on a charge of illegal possession of intoxicating liquor, defendant appealed.

There is but one question involved in this appeal which we deem it necessary to pass upon.That question is the alleged error of the court in overruling defendant's application for change of venue on account of the prejudice of the trial judge.The statute(section 3991, Rev. St. 1919) provides that the judge shall be incompetent to hear and try the cause in either of the following cases:

"* * * Fourth.When the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial."

Under the above statute, the defendant filed a petition for change of venue upon the following ground:

"On account of the prejudice of Hon. W. E. Barton, judge of the circuit court, and because said judge will not afford him a fair and impartial trial in this cause."

This petition was signed by defendant and by his counsel, but was not verified.Along with this petition the defendant filed an affidavit in support of the petition, in which he states:

"* * * That the defendant verily believes that the judge of this court is prejudiced against him and will not afford him a fair and impartial trial of this cause."

Defendant also filed in support of his petition for change of venue the affidavits of two persons in which they state upon their oaths:

"* * * That they have read the application of Clutch Duckworth for change of venue in this cause, and the above and foregoing affidavit supporting the same is true to the best of their knowledge and belief, and the facts stated in said application and affidavit are correct and true. * * *"

The appellant insists that the affidavits of defendant and his supporting witnesses for change of venue were in proper form, and, that being true, the trial judge had no discretion, but must allow the change of venue.If the affidavits did comply with the statute, then appellant is right on that question.State v. Spivey, 191 Mo. 87, 108, 90 S. W. 81;State v. Witherspoon, 231 Mo. 706, 716, 133 S. W. 323.

As to the sufficiency of the affidavits we note first that the statute(section 3991, Rev. St. 1919) requires an affidavit by the defendant and two reputable persons that the judge of the court will not afford the defendant a fair trial.The objection to the affidavits in this case is that they did not follow the language of the statute, and say that "the judge of the court will not afford him a fair trial," but that the affidavits are made according to their knowledge and belief.This raises the question whether the Legislature intended to require a defendant and his supporting witnesses to state under oath that they knew it to be a fact that the judge will not afford the defendant...