State v. Grable

• Decision Date: 31 August 1870
• Citation: 46 Mo. 350
• Parties: STATE OF MISSOURI, Defendant in Error, v. JOHN GRABLE, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 350

STATE OF MISSOURI, Defendant in Error,

v.JOHN GRABLE, Plaintiff in Error.

Supreme Court of Missouri.

August Term, 1870.

Error to Fifth District Court.

Tutt & Grubb, for plaintiff in error.

I. Where the record shows, as in this case, that the application was taken up and considered by the court on its merits, the presumption is that all legal preliminary steps, including notice, had been taken. The notice is no part of the application nor of the record.

II. The seventh instruction given by the court is erroneous. Under it the offense may have been committed in Kansas, and yet the jury were bound to find that the offense, if committed at all, was committed in Buchanan county, in the State of Missouri; and furthermore, it is a declaration of the opinion of the court that the defendant is guilty of the offense, and therefore calculated to prejudice the jury against the defendant.

Johnson, Attorney-General, for defendant in error.

In the case at bar there is no evidence that any notice was given; and when the record is silent, the court will presume everything necessary to support the decision of the court below. (State v. McCutchin, 5 Mo. 522.)CURRIER, Judge, delivered the opinion of the court.

At the February term, 1870, of the Buchanan County Circuit Court, the defendant was indicted for murder in the first degree. At his instance the cause was continued to the next succeeding May term of that court. In the course of the May term, the defendant applied to the court for a change of venue, assigning as ground for the change that the judge holding the court was prejudiced against him. The application was verified, presented, and overruled on the same day. A trial was subsequently had, which resulted in conviction. It is now sought to reverse the judgment because of supposed error in the action of the court in overruling the application for a change of venue, and because of a supposed misdirection of the jury in regard to the locality of the alleged offense.

1. The application for a change of venue was by a petition, verified by affidavit, according to the directions of the statute (2 Wagn. Stat. 1097, § 19); but the record fails to show affirmatively that any notice of the application was given to the prosecuting attorney. The statute, ubi supra, enacts that “a reasonable previous notice of such application must be given to the prosecuting attorney.” That the statute requires the notice indicated, is conceded; but the defendant's counsel insist that notice is to be inferred from the fact disclosed by the record, that the application was “taken up and considered by the court;” that the legal presumption from that circumstance is that “all legal preliminary steps, including notice, have been taken.”

The general rule is that legal intendments and presumptions are to be employed in support of the action of the trial court, and not in opposition to it; to cure defects, and not to create error. But we are here asked to presume the existence of facts not appearing upon the face of the record, in order to show that the decision of the trial court was wrong, and that its judgment ought consequently to be overturned.

The statute requires a “previous” notice. The record not only fails to show that notice, or any notice, but it also fails to show that the prosecuting attorney was present when the application was taken up and considered by the court, or that he had any knowledge whatever of the proceeding. For aught the record shows, the application was overruled for...