State v. Gamble

• Citation: 24 S.W. 1030,119 Mo. 427
• Parties: STATE v. GAMBLE.
• Decision Date: 31 January 1894
• Court: United States State Supreme Court of Missouri

24 S.W. 1030

119 Mo. 427

STATE v. GAMBLE.

Supreme Court of Missouri, Division No. 2.

January 31, 1894.

CRIMINAL LAW — FELONIOUS ASSAULT — INSTRUCTIONS — CHANGE OF VENUE — APPEAL — RECORD.

1. The removal of a cause to the wrong county on an application for a change of venue will not be reviewed unless brought up by a bill of exceptions, and such exceptions can only be taken in the original court.

2. After the removal of a cause to the wrong county, the defendant on trial there may waive his objection.

3. While defendant, on an application for a change of venue, cannot swear to the existence of prejudice in counties outside the circuit; under Rev. St. § 4154, which provides that when it shall appear that the whole circuit is prejudiced the court shall send the cause to some other circuit, he may, in his affidavit, swear against any number or all of the counties in the circuit.

4. Where, in a prosecution for felonious assault, there is no question of reducing the grade of the assault growing out of the intent with which defendant went into the fight, or of his withdrawing therefrom after having once voluntarily entered into it, it is not error to instruct that "words and epithets alone, however vile or grievous, will not justify an assault, and if you believe from the evidence that defendant sought or brought on a difficulty with M., or voluntarily entered into a difficulty with M., then he could not excuse himself on the ground of self-defense."

Appeal from circuit court, Howell county; W. N. Edwards, Judge.

W. T. Gamble was convicted of felonious assault, and appeals. Affirmed.

A. H. Livingston, Alf. Harris, and J. H. Tribble, for appellant. R. F. Walker, Atty. Gen., and Morton Jourdon, Asst. Atty. Gen., for the State.

GANTT, P. J.

At the February term, 1893, of the Oregon circuit court defendant was indicted for felonious assault upon one John H. Mitchell with a whiffletree, and by shooting at said Mitchell with a revolver. At the same term defendant filed his affidavit and application for a change of venue on the ground of the prejudice of the inhabitants of Oregon, Howell, Shannon, and Ozark counties; in other words, against all the counties in the twentieth judicial circuit, except Douglas. The court awarded the change of venue from Oregon, but ordered the cause removed to Howell county, one of the counties against which defendant had sworn his application. At the April term, 1893, defendant filed his application in the Howell circuit court for a continuance, which was denied, whereupon the following proceedings were had: "The cause coming on to be heard, the court, in the presence of the defendant and his attorney, in open court, announced that if the defendant objected to trying the cause in Howell county he would remand the cause to Oregon county, or to some other county in the circuit that the defendant had not included in his application; and defendant in person and by his attorney announced that he would waive his objection to Howell county, and proceed to trial." The defendant was at said term tried, convicted, and his punishment assessed at two years' imprisonment in the penitentiary. After unsuccessful motions for new trial and in arrest, he appealed to this court.

1. Defendant assigns as error that the circuit court of Oregon county had no right to send the cause to Howell county, one of the counties against which he had sworn in his application for change of venue. Nothing is better settled in the practice of this state than that the action of the court upon an application for change of venue is a matter of exception. State v. Ware, 69 Mo. 332; Stearns v. Railway Co., 94 Mo. 317, 7 S. W. 270; Keen v. Schnedler, 92 Mo. 516, 2 S. W. 312. And it is equally well determined that not only is such an application no part of the record, unless made so by a bill of exceptions, but such exceptions must be taken in the court when the application is made, and preserved in a bill of exceptions filed in that court, and not in the court to which the cause is sent. State v. Mann, 83 Mo. 589; Potter v. Adams, 24 Mo. 161; State v. Knight, 61 Mo. 373; State v. Dodson, 72 Mo. 283; Squires v. City of Chillicothe, 89 Mo. 230, 1 S. W. 23; Keen v. Schnedler, 92 Mo. 516, 2 S. W. 312. While it is true that the bill of exceptions in this case contains the application for change of venue in the Oregon circuit court, it only so appears through the bill filed in the circuit court of Howell county, no bill of exceptions having been filed in the circuit court of Oregon county. The circuit court of Howell county could not allow exceptions that had been taken in the circuit court of Oregon county. Keen v. Schnedler, supra. The cause stands, then, as if the point was made for the first time in the Howell circuit court or here, and in either case it is too late to avail. State v. Mann, 83 Mo. 589; State v. Ware, 69 Mo. 332. Being a matter of exception, we have no doubt of the power of defendant to waive the exception, it being merely a statutory privilege. State v. Keele, 105 Mo. 39, 16 S. W. 509; State v. Klinger, 46 Mo. 224; State v. Waters, 62 Mo. 196; State v. Gilmore, 95 Mo. 554, 8 S. W. 359, 912; State v. Hope, 100 Mo. 360, 13 S. W. 490. If the exception had been properly saved, and had not been subsequently waived, we think it would have been error to send the cause to one of the counties against which defendant had sworn. While a defendant cannot interfere with the discretion of the court by swearing against counties outside of the circuit, as was held in State v. Elkins, 63 Mo. 159, and the more recent case of State v. Wofford, 24 S. W. 764, (decided during the January call, at this term, by this division,) yet he...