State v. Hayes

• Citation: 81 Mo. 574
• Parties: THE STATE v. HAYES, Appellant.
• Decision Date: 30 April 1884
• Court: United States State Supreme Court of Missouri

81 Mo. 574

THE STATE

v.HAYES, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

REVERSED.

James J. McBride and C. C. Simmons for appellant.

The transcript shows that at the close of the evidence defendant asked an instruction, which was refused by the court, and that the defendant at the time duly excepted, but the instruction does not appear in the record, the clerk certifying that it is either lost or mislaid. The appellant is entitled to a review of the case upon a correct record. The trial court erred in denying defendant's proper challenges of jurors for cause. He was entitled to a full panel of qualified jurors before he could be compelled to make his peremptory challenges. State v. McCarron, 51 Mo. 27; State v. Steeley, 65 Mo, 218; State v. Degonia, 67 Mo. 485. The judge of the St. Louis criminal court was disqualified to sit in the cause until the matter raised in the affidavits supporting the application for change of venue had been passed on by some competent tribunal. R. S., § 1877. He was legally disqualified to try said cause. The order calling in Judge Burton was legal under Revised Statutes, section 1877, which repealed all acts inconsistent therewith. State v. Kring, 74 Mo. 612; State v. Houser, 28 Mo. 233. Judge Burton having assumed jurisdiction of the cause, had sole charge of it, and he alone could make the vacating order. R. S., § 1881; State v. Daniels, 66 Mo. 192; State v. Hopper, 71 Mo. 425. The order vacating Judge Burton's appointment without notice to defendant was void. State v. Webb, 74 Mo. 333. The circuit court's denial of the application for change of venue, did not confer jurisdiction upon Judge Laughlin. Section 19 of the act concerning the St. Louis criminal court, is repugnant to the provisions of the constitution of the United States, article 14, section 1, for it denies to the citizens of St. Louis city charged with crime, the equal protection of the law with other citizens of the State. Said section 19 of the act creating the criminal court of St. Louis, is also repugmant to section 22 of article 2 of the constitution of Missouri, which guarantees in all criminal prosecutions a speedy and public trial by an impartial jury of the county.

D. H. McIntyre, Attorney General, for the State.

The action of the court in overruling defendant's challenges of jurors was not properly excepted to. Harrison v. Bartlett, 51 Mo. 170. The order appointing Judge Burton having been made under a void statute, ( State v. Kring, 74 Mo. 612,) Judge Burton acquired no jurisdiction, and Judge Laughlin lost none. The application for change of venue on account of the prejudice of the inhabitants of St. Louis, was properly made to the circuit court. State v. Kring, 74 Mo. 612, 627. The trial court did not err in overruling the application for a panel of jurors from St. Louis county. State ex rel. v. Laughlin, 75 Mo. 147. The instructions given by the court covered the whole case, hence the question raised by defendant as to the lost or mislaid instruction, is immaterial. State v. Jefferson, 77 Mo. 137

SHERWOOD, J.

The defendant was indicted for murder in the first degree and, on trial had, was convicted of that offence, and there was abundant testimony to support the conviction. He now appeals to this court.

The instructions given covered every phase of the case arising on the facts adduced in the evidence, and left nothing to be desired. This deprives the case of resemblance to Reid's case, 67 Mo. 36; for even had the instruction, asked by defendant and refused by the court, been preserved in the bill of exceptions, its refusal would not have authorized a reversal, other instructions fully covering the case having been given. This being true, it must be entirely immaterial whether the instruction was lost or whether preserved.

Regarding the challenging of two of the jurors for cause, there is no such point preserved in the bill of exceptions, the only proper repository for such matters, and, indeed, of all similar matters which rest in, and are based on exceptions. The affidavits respecting such challenges cannot, therefore, be noticed. And the like line of remark applies to the supposed unjustifiable utterances by the counsel of the State, when addressing the jury. After so many adjudications on this point, as to the proper method for preserving matters of mere exception, it seems strange that counsel should resort to any other mode than that so frequently pointed out by a long line of adjudication.

The next points for determination present more difficulty and necessitate a discussion of certain statutes of a general character, and others which are local in their nature and operation, relating to changes of venue in criminal causes, and determining whether, in the present case, the former or the latter, should control. At the January term, 1882, the defendant filed his application for a change of venue, based upon the prejudice of the inhabitants of the eighth judicial circuit. This application was supported by the affidavit of the defendant as well as by the affidavits of two other persons, and also by the additional affidavit of the defendant that the judge of the criminal court would not impartially decide defendant's application because of the prejudice of the inhabitants of the eighth judicial circuit. This application was in entire conformity to the provisions of section 1877, R. S., 1879, and resulted in the Hon. Charles G. Burton, judge of the twenty-fifth judicial circuit, being requested by the order of the criminal court to hear the petition for a change of venue and to try the cause. Judge Burton accordingly came and sat in the cause January 30th, 1882, and as the record recites “enters upon the discharge of his duties in respect to hearing said application for change of venue and the trial of this cause; thereupon the hearing of said application for a change of venue and the trial of this cause is by consent of both the circuit attorney and the defendant laid over to Wednesday, February 8th, 1882.” On the 2nd day of February, 1882, the opinion of this court in the case of the State v. Kring, 74 Mo. 612, having been promulged, Judge Laughlin, the judge of the criminal court, believing himself to be acting in conformity with that opinion, and that the opinion therein decides, as it does, that applications for changes of venue on account of the prejudice of the inhabitants of the city of St. Louis must be made to some judge of the circuit court of that city, set aside the order aforesaid, on the ground that there was no authority to make it. Judge Burton thereafter took no further steps in the cause, but Judge Laughlin thereafter took full control of the cause and to this action of Judge Laughlin, the defendant excepted. On the 8th of February, 1882, to which time the cause had been adjourned by Judge Burton, the defendant filed his verified petition in the circuit court of the city of St. Louis for a change of venue, based upon the prejudice of the inhabitants of that city. The circuit court, after hearing testimony in the cause, denied the prayer of the petition. Thereafter, on the 3rd of April, 1882, the defendant made application, verified by his affidavit, to the criminal court, praying for a jury from the county of St. Louis, alleging in his application the prejudice of the inhabitants of the city. This application, being also denied and the defendant excepting, he was put upon his trial in the criminal court, before Judge Laughlin, with the result already announced.

These preliminaries being stated, these questions arise: As to the effect of the application for a change of venue made before the judge of the criminal court; his calling in Judge Burton to sit in the cause; the assumption by the latter of jurisdiction in the cause; the subsequent vacation by the judge of the criminal court of the order requesting Judge Burton to sit; the resumption by the judge of the criminal court of jurisdiction and control of the cause; the legality of the application for a change of venue made before the circuit court, based upon the prejudice of the inhabitants of the city of St. Louis, and the validity of the application made to the criminal court for a jury from the county.

Section 1877, before referred to, provides that “when any indictment * * shall be pending in any circuit or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause in either of the following cases: 1st. When the judge of the court in which such case is pending is near of kin to the defendant by blood or marriage; or, second, when the offence charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him; or third, when the judge is in anywise interested or prejudiced, or shall have been counsel in the cause; or fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial or will not impartially decide his application for a change of venue on account of the prejudice of the inhabitants of the county or circuit.”

It will be observed that this section applies indiscriminately to all courts exercising criminal jurisdiction. It will be further observed that the fourth sub-division of the section disqualifies the regular judge of the court to hear and try the cause upon filing the affidavit which that subdivision requires equally as much as when he is of kin, interested or prejudiced. And from the very nature of the case, a judge of whom it is sworn that he will not impartially decide an application for a change of venue, is incompetent to sit to try such an issue; otherwise he adjudicates upon the question of his own impartiality. And, indeed, it has passed into precedent that the section under...