State v. Gamble

• Decision Date: 02 March 1892
• Citation: 18 S.W. 1111,108 Mo. 500
• Parties: STATE v. GAMBLE.
• Court: Missouri Supreme Court

18 S.W. 1111

108 Mo. 500

STATE v. GAMBLE.

Supreme Court of Missouri, Division No. 2.

March 2, 1892.

SPECIAL JUDGES — QUALIFICATIONS — CONTINUANCE — INDICTMENT — READING TO JURY.

1. Under Rev. St. 1879, § 1107, regulating the election of special judges, the record from a circuit court, over which a special judge presided, need not contain the official oath of such judge, or recite that he had the qualifications of a circuit judge.

2. Where defendant was indicted at the August term, 1886, and first appeared in court at the August term, 1888, and after several continuances and a mistrial and several more continuances obtained a change of venue, and the cause was finally reached for trial at the June term, 1890, and, on defendant's motion for a continuance because of the absence of his witnesses, the court continued the case to a day certain, and awarded him compulsory process, and on the trial day overruled defendant's motion, and he proceeded to trial without further objection, he cannot complain of the refusal to grant a continuance.

3. Under Rev. St. 1889, § 4208, requiring the prosecuting attorney in criminal trials to "state the case and offer evidence in support of the prosecution," the indictment need not be read to the jury.

Appeal from circuit court, Clay county; JAMES M. SANDUSKY, Judge.

John A. Gamble, alias Dolph Gamble, was convicted of manslaughter in the third degree, and appeals. Affirmed.

The other facts fully appear in the following statement by GANTT, P. J.:

The defendant was indicted at the August term, 1886, of the circuit court of Platte county, for murder in the first degree for the killing of one Jeff Cluck, in said county, on the 6th day of August, 1886. He was arraigned, and pleaded "not guilty." The cause was continued, on defendant's application, through several terms of court, and at his request a change of venue was granted to the circuit court of Clay county. The cause coming on for trial at the June term of said court, defendant made application for a continuance on the ground of the absence of material witnesses; which application was overruled by the court, and defendant was put upon his trial, which resulted in his conviction of manslaughter in the third degree, and his punishment being assessed at imprisonment in the penitentiary for three years. His motions for a new trial and in arrest being overruled, he prayed for, and was granted, an appeal to this court. The bill of exceptions does not contain either the evidence or the instructions given on the trial. The only three errors assigned, are that the court overruled defendant's motion "to exclude all evidence and dismiss the cause, because the transcript failed to show the election and qualification of ROLAND HUGHES, Esq., as special judge of the Platte circuit court, and overruled an application for continuance and failure of prosecuting attorney to read the indictment to the jury.

Silver & Brown, for appellant. John M. Wood, Atty. Gen., and John W. Coots, Pros. Atty., for the People.

GANTT, P. J., (after stating the facts.)

1. The record shows that on the second Monday in August, 1886, — the day designated by law for the convening of the circuit court of Platte county for the regular August term of said court, — Hon. GEORGE W. DUNN, judge of said court, was sick, and not able to be present to preside over said court; and, Judge DUNN not having requested any other judge to hold said court, the members of the bar and the attorneys practicing in said court, to the number of 11, requested the circuit clerk to hold an election for a temporary special judge in accordance with the provisions of section 1107, Rev. St. Mo. 1879. It then further recites that said election was held, naming the attorneys who participated therein, and that at said election Roland Hughes received 10 votes and Hon. Norton Anderson one vote, and Mr. Hughes, having received the greater number of votes, was by said clerk declared elected, and then proceeds: "And now, here, on this 9th day of August, 1886, comes the said Roland Hughes, and files in the office of the clerk of our said court his affidavit and official oath as said temporary special judge, as required by section 1112 of the statutes. And now, at this day, comes the said Roland Hughes, the temporary special judge of said court, and the following officers of said court, in open court, and enter upon the discharge of their official duties, to-wit, William H. Roney, clerk; Richard W. Pack, sheriff; James W. Coburn, prosecuting attorney." Eight different reasons were assigned why this order was insufficient, but the principal objections were that it did not contain the affidavit of Mr. Hughes, and did not recite that he had the qualifications of a circuit judge. There is no force in any of the various technical objections to this record. This court held in Green v. Walker, 99 Mo. 68,¹ that "the same presumptions of jurisdiction attach to the record of proceedings in circuit courts before special judges as before the regular judge." Whoever saw a record...