State v. Hancock

• Decision Date: 25 May 1928
• Docket Number: No. 28735.,28735.
• Citation: 7 S.W.2d 275
• Parties: THE STATE v. J.P. HANCOCK, Appellant.
• Court: Missouri Supreme Court

7 S.W.2d 275

THE STATE v. J.P. HANCOCK, Appellant.

No. 28735.

Supreme Court of Missouri, Division Two.

May 25, 1928.

Appeal from Ripley Circuit Court. — Hon. E.P. Dorris, Judge.

AFFIRMED.

Geo. D. Sloan for appellant.

(1) The court erred in overruling defendant's application for a change of venue from the county. The statute (Sec. 3973, R.S. 1919, as Amended Laws 1921, p. 206) is definitely determinative of this question. In counties of less than 75,000 (Ripley County being in this class), if the application is supported by the five or more disinterested citizens residing in different neighborhoods of the county where the case is pending the duty of the court to grant a change is mandatory. State v. Dyer, 285 S.W. 102. (2) The court erred in overruling defendant's motion to quash the special panel of jurors selected by the sheriff to try this cause. Sec. 6617, R.S. 1919.

North T. Gentry, Attorney-General, and Hibbard C. Whitehill, Special Assistant Attorney-General, for respondent.

(1) Change of venue is purely a statutory matter, and the statute must be fairly complied with before the trial court can be convicted of error in refusing the change. Where one application for change of venue was made and overruled because it did not comply with the statute, and where the record fails to show that an amended application was filed by leave of court, or that time was granted in which to prepare another application, defendant is not entitled to file successive applications for a change. Sec. 3973, R.S. 1919, as amended Laws 192], p. 206; Groo v. Sanderson, 235 S.W. 177; State v. Davis, 203 Mo. 616; Browder v. Comm., 123 S.W. (Ky.) 328; Nichols v. State, 143 S.W. (Ark.) 1071; Duckworth v. State, 111 S.W. (Ark.) 268; Etter v. State, 144 Pac. (Okla.) 560. (2) When it becomes necessary to fill vacancies in the jury panel for the trial of any one case, the court may, in its discretion, order the sheriff to summon from the bystanders a sufficient number of jurors to fill such vacanies in such case, and it is not necessary to choose such additional jurors from the list of alternates. Sec. 6617, R.S. 1919; State v. Boone, 289 S.W. 578; State v. Murphy, 292 Mo. 275.

DAVIS, C.

On April 1, 1927, the Prosecuting Attorney of Ripley County filed in the circuit court an information comprising two counts, in which defendant was charged in the first count with carrying a concealed weapon, and in the second with possessing a dangerous and deadly weapon when intoxicated. On motion the court required the State to elect at the close of the State's case, the State electing to stand and the trial proceeding on the second count. The jury returned a verdict finding defendant guilty as charged in the second count of the information and assessing his punishment at two years in the penitentiary, defendant appealing from the judgment entered thereon.

The evidence adduced on the part of the State warrants the finding that, on March 13, 1927, defendant was arrested in the town of Doniphan, Ripley County, while abroad on the street, by a night watchman, who took him to the jail. On being searched, an automatic pistol, fully loaded with cartridges, was found in his possession, the sheriff and watchman testifying that they did not see him take a drink, but that defendant was drunk, that he talked incoherently, that the odor of liquor was upon his breath, and that he staggered and acted drunk. In his possession there was also found a full quart of whiskey and a pint bottle of whiskey, partly filled. Other facts will appear in the discussion of the issues raised.

I. The prosecution is based on Section 3275, Revised Statutes 1919, the apposite portion of which reads: "If any person shall carry concealed upon or about his person a dangerous Sufficient or deadly weapon of any kind or description, ... or Evidence. shall have any such weapon in his possession when intoxicated," etc. We have examined the record proper in search of error, and conclude that error does not exist therein. We have also examined the evidence to determine whether the State made a submissible case, but as it is evident from the facts collated that such case was made, it would avail nothing to extend the discussion.

II. Defendant charges the court erred in overruling his applications for a change of venue, based on the prejudice of the inhabitants of the county. We judicially notice that Ripley County has a population of less than seventy-five thousand inhabitants. Section 3973, page 206, Laws 1921, Change of applies. The pertinent portion thereof reads: Venue. "Provided, in all cases in counties in this State which now have or may hereafter have a population of less than seventy-five thousand inhabitants if such petition for change of venue is supported by the affidavits of five or more credible disinterested citizens residing in different neighborhoods of the county where said cause is pending, then the court or judge in vacation, shall grant such change of venue, as of course, without additional proof ..."

Omitting caption, signatures, verification and prayer for change of venue, on July 6, 1927, immediately preceding the trial, the record shows that defendant filed a verified application for a change of venue, reading: "Now comes the defendant in the above entitled cause and represents to the court that there is a charge pending in the Circuit Court of Ripley County, Missouri, against him, wherein he stands charged with the crime of carrying concealed weapons and that he has good reason to believe and does believe that he cannot have a fair and impartial trial of said cause in the said Circuit Court of Ripley County, Missouri, because the inhabitants of the county are prejudiced against him."

Accompanying said application were five affidavits of citizens of the county, of which, omitting caption, signatures and verification, the following serves as an example, reading: "L.P. Napier of lawful age having been duly sworn upon his oath deposes and says that he has seen and read the above and foregoing application and affidavit of the defendant, J.P. Hancock, for a change of venue and that the facts stated therein are true to his best knowledge and belief, and that the said defendant cannot have a fair and impartial trial of said cause in the Circuit Court of Ripley County, Missouri, for the reasons stated therein. Affiant further states that he is not of kin to or counsel for the said J.P. Hancock, and that he is a credible disinterested citizen of the neighborhood of Doniphan, Ripley County, Missouri, and a resident thereof." The four other affidavits follow in haec verba the foregoing affidavit, except each affiant states that he is a resident of the neighborhood of Poynor, Gatewood, Briar Creek and Doniphan, Route No. 1, Ripley County, respectively. The record advises the court overruled the foregoing application.

Thereafter and immediately preceding the trial, defendant filed a second application for a change of venue which is a substantial duplication of the first application. In connection therewith, there was filed a supporting affidavit, subscribed and verified by two credible, disinterested citizens of the county, which, in substance, states that the facts in the application are true, that defendant cannot have a fair and impartial trial in said county for the reasons stated, and that the affiants are not kin to or counsel for defendant. Also accompanying said second application were six affidavits of citizens of said county, of which, omitting caption, signatures and verification the following is an example, reading: "J.C. McManus of lawful age first being duly sworn upon his oath says that he has seen and read over the above and foregoing application and affidavit of the defendant, J.P. Hancock, for a change of venue and that the facts stated therein are...