State v. Gleason

• Citation: 88 Mo. 582
• Parties: THE STATE v. GLEASON, Appellant.
• Decision Date: 30 April 1886
• Court: United States State Supreme Court of Missouri

88 Mo. 582

THE STATE

v.GLEASON, Appellant.

Supreme Court of Missouri.

April Term, 1886.

Appeal from St. Charles Circuit Court.--HON. W. W. EDWARDS, Judge.

AFFIRMED.

Zack. J. Mitchell for appellant.

(1) The record shows that the change of venue was on account of the prejudice of the inhabitants of the ninteenth judicial district which included St. Charles county. (2) An order transferring the person of the defendant to the custody of the sheriff of St. Charles county was necessary to perfect the jurisdiction of the latter court. (3) The court erred in trying the defendant with a jury of by-standers and in denying him the regular panel of standing jurors.B. G. Boone, Attorney General, for the state.

(1) An affidavit for change of venue must be supported by legal and competent evidence. R. S., sec. 1859; State v. Bohannon, 76 Mo. 562. (2) When the case was transferred to St. Charles county, its circuit court became possessed of full jurisdiction. State v. Elkins, 63 Mo. 159. (3) Statutes in respect to the empanneling of juries in criminal cases are directory. State v. Breen, 59 Mo. 413; State v. Pitts, 58 Mo. 556; State v. Knight, 61 Mo. 373; State v. Ward, 74 Mo. 256, and cases cited. It is held generally that a strict compliance with statutory provisions prescribing the time and mode of summoning juries is not necessary. Whar. Cr. L. [3 Ed.] sec. 1041; Thom. & Mer. on Juries, sec. 47. From aught that appears from the record, it may have been that the regular panel had been exhausted by challenges or were engaged in another case. State v. Jones, 61 Mo. 232.

BLACK, J.

The defendant and others were indicted in the circuit court of St. Louis county for robbery in the first degree. After one mistrial, a severance was ordered, and the venue changed to St. Charles county, but it would seem no order was then made to remove the body of the defendant to that county. A transcript having been filed in the court to which the cause had been removed, the defendant by his attorney appeared there and moved the court to strike the cause from the docket; the motion was overruled. The St. Louis county circuit court, at next term after the venue was changed, ordered the defendant to be delivered to the jailer of St. Charles county, which was done. The cause coming on for hearing in that court, the defendant filed a plea to the jurisdiction and also challenged the array of petit jurors; the plea and motion were both overruled, and defendant refusing to plead, a plea of not guilty was entered, and upon a trial he was found guilty.

1. The petition for a change of venue was based upon two grounds, prejudice of the inhabitants of St. Louis county, and prejudice of the inhabitants of the entire nineteenth judicial circuit, of which St. Charles county is also a part. The claim is that the motion was sustained in its entirety, and that, therefore, the St. Charles circuit court acquired no jurisdiction. But this is a misconception of the record. The order recites that there was good cause for granting the motion because of prejudice of the inhabitants of St. Louis county, and then it is adjudged that the motion be sustained and the venue of the cause changed to the county of St. Charles, and the clerk is directed to forward a transcript of the proceedings to the circuit court of that county. The plain and only effect of the order was to sustain the application as to St. Louis county, and to overrule it, as to the entire circuit. How else...