State v. Euge, 30646

Citation349 S.W.2d 502
Decision Date19 September 1961
Docket NumberNo. 30646,30646
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Harvey F. EUGE, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Harvey F. Euge, pro se.

William J. Geekie, Pros. Atty., and Sidney Faber, Asst. Pros. Atty., St. Louis, for respondent.

DOERNER, Commissioner.

Defendant, Harvey F. Euge, was found guilty of the offense of issuing a check with intent to defraud, in violation of Section 561.460 (all statutory references are to RSMo 1959, V.A.M.S.) and his punishment fixed by the jury at a fine of $200. He appealed from the ensuing judgment, but filed no brief in this court, nor did the State. Accordingly, we review the essential record and the assignments in defendant's motion for a new trial properly preserving alleged error for review. Supreme Court Rules 27.20, 28.02, 28.08, V.A.M.R.; State v. James, Mo., 347 S.W.2d 211.

Defendant's motion contains twenty purported grounds for a new trial. It was prepared by defendant, a layman, after court-appointed counsel who had represented him at the trial had sought and obtained permission to withdraw. The majority of the assignments are too general to comply with Sp.Ct.R. 27.20(a). In fact, they are so vague and indefinite that it is difficult to ascertain the nature of the errors alleged to have been committed by the trial court. As best we can understand them, defendant's motion attacks the information; the refusal of the court to grant a change of venue; the overruling of defendant's motion to set aside the order overruling defendant's plea in abatement; the admission of certain evidence; the denial of a request for a mistrial; the sufficiency of the State's evidence to support the verdict; and the giving of those instructions given by the court, and the refusal to give others offered by defendant.

We note that in defendant's motion it is also claimed that he was denied the equal protection of law, and that a statute, not designated but presumably Section 561.470, is unconstitutional 'in that it is in direct opposition and violation of the Presumption of Innocence * * *,' and therefore in conflict with both the Missouri and United States constitutions. A question as to our jurisdiction of this appeal necessarily arises, for regardless of the fact that defendant was convicted of a misdemeanor, jurisdiction of his appeal would be vested in the Supreme Court if a constitutional question was involved. Art. V, Sec. 3, Const. of Mo., V.A.M.S. However, if it was defendant's intention to present such an issue for appellate review he has failed to comply with the requirements as to the mode and time of raising a constitutional question. State ex rel. Kirks v. Allen, Mo., 250 S.W.2d 348; City of St. Louis v. Stenson, Mo.App., 333 S.W.2d 529. The mere assertion that a defendant has been denied the equal protection of law, like the assertion that defendant has been denied due process of law, does not call for the construction of the constitution so as to divest this court of jurisdiction of an appeal. State v. Brookshire, Mo., 325 S.W.2d 497. Furthermore, raising a constitutional question in order to vest jurisdiction in the Supreme Court is not a mere matter of form, Magenheim v. Board of Education of School District of Riverview Gardens, Mo., 340 S.W.2d 619, and if the contention sought to be made is not real and substantial, but merely colorable, as here, that court does not have jurisdiction. City of Webster Groves v. Quick, Mo., 319 S.W.2d 543. It follows that we have jurisdiction of defendant's appeal.

An examination of the information claimed to be defective discloses that, in substance, it charges that the defendant, with intent to defraud the Slovan Savings and Loan Association, on October 7, 1958, in the City of St. Louis, made and delivered his check for $12.50, drawn on the Lindell Trust Co., to the Association, knowing the at that time he did not have sufficient funds in or credit with said Trust Company for the payment of the check in full upon its presentation. The information follows the wording of Section 561.460 and alleges all of the facts necessary to bring the defendant within the provisions of that section. It is therefore sufficient. State v. Kaufman, Mo.App., 308 S.W.2d 333.

Defendant was arraigned on September 3, 1959, and pleaded not guilty. Thereafter, on November 3, 1959, he filed what was termed a 'Verified Plea in Abatement or in the Alternative Motion to Quash the Information and Motion to Dismiss.' It is not clear from the transcript when this 'plea in abatement' was presented and heard, but the record shows that it was overruled on April 4, 1960. The days later, on April 14, 1960, defendant filed what he stated was '* * * a motion for a new trial in the overruling of the plea in abatement.' When the case was called for trial on April 18, 1960, this so-called motion for a new trial remained undisposed of, and upon having his attention called to it the trial court overruled the motion. In his motion for a new trial defendant does not complain that the court erred in overruling what he called his 'plea in abatement.' His assignments are that the court committed error, first, in overruling the so-called motion for a new trial; and secondly, that the court lacked jurisdiction to immediately proceed with the trial because 'the motion for new trial carries a ten day period before it becomes final.' It is perhaps unnecessary to state that at the time these anomalous pleadings were prepared and filed defendant was acting as his own counsel. Under our Code of Criminal Procedure pleas, demurrers and motions to quash were abolished, and such defenses or objections which formerly were raised by one or more of them must now be raised by a motion to dismiss or to grant appropriate relief. Sp.Ct.R. 25.05(a). There is, of course, no provision in our Code of Criminal Procedure for a motion for a new trial when a motion to dismiss (or a so-called plea in abatement) is overruled, and defendant's alleged motion for a new trial from the order overruling his 'plea in abatement' was a nullity. Nor is there any part of the Code which would prohibit a court from immediately trying the case when, to clear the record, it overruled such an ineffectual motion.

In addition to his so-called plea in abatement, following his arraignment and plea, defendant filed an application for a continuance (granted); a request to defend as a poor person (diposition not shown); a request for the appointment of an attorney to represent him (granted); a request that the court take judicial notice of an impediment in his speech; and an application for a change of venue. In the latter it was alleged that the judges of both Divisions of the St. Louis Court of Criminal Correction were biased and prejudiced against defendant; and in the concluding sentence of the body of the application it was alleged '* * * that the Citizens of the City of St. Louis are also prejudice against defendant and by reason thereof defendant can not obtain a fair and impartial trial in said City and before the said judges aforesaid.' The prayer was '* * * for an order for a change of Venue to the County of St. Louis * * *.' Pursuant to the motion, the Honorable J. Casey Walsh, one of the judges of the Twenty-Second Judicial Circuit, was by an order of the Supreme Court, transferred to the St. Louis Court of Criminal Correction to try this cause, in accordance with Sp.Ct.R. 30.15. When the case was called for trial before him, on April 18, 1960, defendant, in the presence of his court-appointed counsel, protested that he had requested a change of venue to St. Louis County. A colloquy ensued between the court and defendant as to whether that part of the motion had been disposed of, and upon defendant's insistence that it had not, the court stated: 'Well, we will take it up. What do you want to say about that?' Defendant replied that he thought the cause should be moved to the county, and when pressed for his reason, stated that it was because he had been found guilty in a prior case. The court thereupon ruled '* * * If that is the basis for your change of venue, it will be overruled. * * *'

The assignment of error appearing in defendant's motion for a new trial is that 'the court erred in overruling defendant's request for the hearing on his change of venue previously filed in said cause for the removal of the cause to the County of St. Louis State of Missouri.' As the foregoing excerpt shows, defendant's request for a hearing on his application was granted, and the court afforded defendant an opportunity to be heard on his application. Taking a charitable view, if by the foregoing language the defendant intended to say that the court erred in denying the application, such a contention is likewise without merit. A defendant is not entitled to a change of venue to another county as a matter of course, or merely because he alleges prejudice against him on the part of the inhabitants of the county in which the cause is pending. Not only must his application be timely filed, which defendant's was not, Sp.Ct.R. 30.03, but it must be supported by the affidavit of the petitioner 'and by the affidavits of at least two credible, disinterested citizens of the county where the case is pending.' Sp.Ct.R. 30.04. No affidavits of citizens of the City of St. Louis were filed in support of defendant's application, and that deficiency alone was a sufficient ground upon which to overrule defendant's application. State v. Taylor, 330 Mo. 1036, 51 S.W.2d 1003; State v. Kocian, Mo., 208 S.W. 44. Furthermore, Sp.Ct.R. 30.04 requires that the alleged bias and prejudice of the inhabitants '* * * shall be proved to the satisfaction of the court by legal and competent evidence * * *,' and the mere fact that defendant had been found guilty on some prior charge was not sufficient evidence to show that the inhabitants of the City of St. Louis were so...

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