State v. Farrar
| Decision Date | 14 February 1921 |
| Citation | 227 S.W. 1078,206 Mo.App. 339 |
| Parties | STATE OF MISSOURI, Respondent, v. SAM FARRAR, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Laclede County.--Hon. E. P. Dorris Special Judge.
AFFIRMED.
Judgment affirmed.
A. W Curry, D. O. Vernon and Frank H. Farris for appellant.
(1) On the making of the order by Judge Woodside granting a change of venue from the Laclede County Circuit Court of Camden County Circuit Court, the Laclede County Circuit Court lost all jurisdiction of the cause, and could not, therefore again assume jurisdiction. Hanna v. Buford, 194 S.W. 517; State ex rel. v. Cook, 201 S.W. 364. (2) The person indicted for any offense and held to answer on bail, and not brought to trial before the end of the third term of the court in which the cause is pending, after such indictment found, shall be entitled to be discharged unless the delay happened upon his application or was occasioned by want of time to try the cause at such third term. Section 5237, R. S. 1909. In all cities or counties in which there shall be held more than two regular terms of the court having criminal jurisdiction, the defendant shall not be entitled to be discharged under the circumstances mentioned in section 5237 until the end of the fourth term after the indictment was found. Section 5249, R. S. 1909. (3) The initial court, as well as the trial court, the special judge, erred in the overruling of appellant's plea in abatement. He was summoned before the grand jury, required to bring his prescriptions and deliver them to the grand jury for their inspection at the time when the grand jury was investigating his conduct, and for the purpose of furnishing evidence upon which to indict him. He appeared under the force of a subpoena and delivered himself and his prescriptions as a witness before the grand jury in obedience to such subpoena. He was, therefore, forced by the order of law to give testimony against himself, and without which testimony no indictment could or would have been found. His plea in abatement, therefore, should have been sustained. State v. Noughton, 221 Mo. 421; State v. Thomas, 250 Mo. 211; State v. Blackburn, 201 S.W. 99, and cases therein cited.
Phil. M. Donnelly for respondent.
(1) On the making of the order by Judge Woodside granting a change of venue from the Laclede County Circuit Court to the Camden County Circuit Court, the Laclede County Circuit Court did not lose jurisdiction of the cause and jurisdiction did not vest in the Camden County Circuit Court until the requirements of the statutes had been complied with and also until compliance with all other statutory requirements. 12 Cyc. 253; 16 Corpus Juris, page 218; State v. Stone, 106 Mo. 1. (2) In regard to the Plea in Bar filed by the defendant, the respondent contends that the defendant would not be entitled to be discharged on account of the continuances taken by the State in this case. The indictment was preferred at the May, 1916, term of the circuit court and this term would not be included in counting the number of terms of court at which the case was continued. State v. Riddle, 179 Mo. 287.
Cox, P. J., not sitting.
This is an appeal from a judgment of conviction rendered in the circuit court of Laclede county at the October Term thereof, 1919. No point is made concerning the sufficiency of the indictment, the admissibility of testimony offered by the State, none being offered by defendant, the instructions given and the form of the judgment entered, and an examination of same makes it apparent that they conform to the practice in such cases.
There are three questions raised on this appeal striking at the validity of the judgment. First, that the circuit court of Laclede county lost jurisdiction of the case on account of an attempted change of venue to Camden County. Second, that the defendant was a registered druggist and was required by a subpoena issued by the grand jury which indicted him, to bring before it, while investigating his conduct, his prescriptions covering the sale of intoxicating liquors. Third, that under sections 5247, 5248 and 5249, Revised Statutes of 1909 defendant was entitled to a discharge, it being claimed that the record shows that he was not brought to trial within the time provided by such sections, and that the delay did not happen on his application nor was it occasioned by want of time to try the cause.
Considering these matters in inverse order, we must hold that defendant's contention that he was entitled to a discharge for failure of the State to bring him to trial in proper time must be overruled. The indictment was found at the May Term, 1916, of the Laclede Circuit Court and by the terms of the statute the term of court at which the indictment is found is not to be counted. [Secs. 5246, 5247, R. S. 1909; Robinson v. State, 12 Mo. 592, 595; State v. Haines, 160 Mo. 555, 61 S.W. 621, 61 S.W. 621.] The record further shows that the case was continued by the State at the October Term, 1916, at the February Term, 1917, and at the May Term, 1917. But as there are three terms of court each year in Laclede County and defendant was admitted to bail, then by the terms of sections 5247 and 5249, Revised Statutes 1909, the defendant was not entitled to be discharged because of the default of the State in bringing him to trial "until the end of the fourth term after the indictment was found." This fourth term would be the October Term, 1917. At that term, however, the defendant asked and was granted a change of venue from the Judge and instead of selecting a special Judge or calling in a Judge of another Circuit, as provided by statute, section 5201 Revised Statutes 1909, the State and defendant stipulated that the cause be transferred to Camden County, in another Circuit. This action of defendant prevented any trial at the October Term, 1917, and the State cannot be held in default at that term. State v. Cox, 65 Mo. 29.] The papers in the cause were transmitted to Camden County and the case docketed for trial at the February Term, 1918, of that court. The defendant then appeared in that court and filed a motion to strike the cause from the docket and transfer the papers back to Laclede County on the ground that he had given no recognizance to appear in that court and such court was without jurisdiction. The court sustained the motion and the case went back to Laclede County for trial at the May Term, 1918. Certainly the State was not in default in bringing the case to trial in Camden County at the February Term, 1918, since defendant successfully resisted the right of that court to put him on trial though sent there at his instance. When the case was returned to Laclede County, the Judge of that court called in the judge of another Circuit to try the case, as should have been done in the first instance. [See Sec. 5201, R. S. 1909.] The court then set the case for trial at an adjourned May Term, 1918, at which the case was tried, resulting in a mistrial.
The defendant filed his motion to be discharged at this May adjourned term, 1918, and it is the overruling of this motion of which defendant now complains. This motion, however, was properly overruled at that time, since while it was filed at the fourth term after the indictment was found, excluding the term at which defendant took the change of venue and the term at which the case was pending in Camden County, yet the State was ready for trial and did bring the defendant to trial at that term. Any delay incident to the taking of the change of venue by defendant cannot be changed to the plaintiff. [State v. Cox, 65 Mo. 29.] The continuing of the case at the regular May Term, 1918, to an adjourned term is not a continuance within the meaning of Sections 5246, 5247, 5248 and 5249, R. S. 1909. [State v. Riddle, 179 Mo. 287, 292, 78 S.W. 606.]
It is true that after the mistrial at the May Term, 1918, the case was continued from term to term till the October term, 1919,...
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