State v. Houser
| Decision Date | 31 March 1859 |
| Parties | THE STATE, Respondent, v. HOUSER, Appellant. |
| Court | Missouri Supreme Court |
1. The St. Louis criminal court has power, of its own motion, to order a removal of a cause to the St. Louis circuit court on the ground that the judge of the said criminal court has been of counsel for the defendant; the local act of December 11, 1855, (R. C. 1855, p. 1591,) is confined to changes of venue made upon the application of the defendant.
2. Where an instruction given by the court could have had no influence on the verdict--there being no evidence upon which to ground it--an inquiry into its propriety as an abstract proposition of law will not be held obligatory on the supreme court.
3. Where it is sought to show the presence of the defendant at the time and place of the homicide by showing the identity of a shirt, with marks of blood upon it, found at the place of the homicide on the morning after its commission, with a shirt worn by the defendant on the day of the homicide, the fact, testified to by the person, a relative of defendant, at whose house the homicide was committed, that she gave the shirt up to the brother of the defendant on his demand, is evidence tending to show the real opinion of the witness as to the question of identity and ownership of the shirt--she having stated that when she gave the shirt to the brother she told him that she did not think it belonged to the accused.
4. The fact that a slung-shot was discovered in the pocket of a person on trial for a capital crime when about to be brought into court to be present at the rendition of the verdict is admissible in evidence against the accused on a second trial.
Appeal from St. Louis Circuit Court.
This was an indictment against Stephen H. Houser for the murder, in Gasconade county, on the 25th of July, 1853, of William D. Farris. The indictment was found at the September term, 1856, of the Gasconade circuit court. A change of venue was taken to the St. Louis criminal court. Houser was convicted in the criminal court, Lackland, Judge, presiding, and the judgment against him was reversed in the supreme court. (See--Mo.___.) Afterwards, at the election held in August, 1857, Judge Lackland was transferred to the St. Louis circuit court, and Henry A. Clover, counsel for Houser on the former trial, was elected judge of the criminal court; and the court, of its own motion, made an order removing the cause to the St. Louis circuit court on the ground that Judge Clover, of the criminal court, had been of counsel for Houser.
U. & J. T. Wright, for appellant.
I. The circuit court had no jurisdiction of the cause. Its judgment is void.
II. The court refused proper and legal instructions, and gave no equivalents. The case turned on the identity and ownership of the shirt. The court instructed the jury erroneously on the law of self-defence. (19 Mo. 506.)
III. The court erred in permitting evidence to be introduced as to the slung-shot four years after the homicide.
Mauro, (circuit attorney,) for the State.
I. The judge of the criminal court properly made the order on his own motion to change the venue. (R. C. 1855, p. 539, § 41, p. 1184, § 21, p. 1591; Jim v. State, 3 Mo. 147; Gates v. State, 20 Mo. 400.)
II. The testimony with respect to the slung-shot was
admissible in evidence. The instructions on the subject of self-defence were proper. The instruction complained of received the sanction of this court in State v. Shoultz, 25 Mo. 153.
The first point taken in this case is, that the circuit court of St. Louis had no jurisdiction; that the change of venue ordered by the criminal court was contrary to the express terms of the act which regulates changes of venue in this county. The act in relation to changes of venue from the criminal court of St. Louis county declares that “no change of venue shall hereafter be allowed from the St. Louis criminal court except in the mode pointed out in the succeeding section of that act.” The next section provides that “any party desiring a change of venue from said criminal court on account of any of the causes provided by law, shall present his petition to the judge of the St. Louis court of common pleas, in writing, verified by affidavit,” &c. (R. C. 1855, p. 1591.) The change of venue in this case was not made upon the application of either party, the State or the defendant; but was made by the judge upon his own motion, for the reason that he had been counsel for the prisoner. The forty-first section of the general act concerning courts (R. C. 1855, p. 539) declares that “no judge or justice of any court shall sit on the trial of any cause or proceeding in which he is interested, or related to either party, or shall have been of counsel; but it shall be the duty of the judge to try said cause or proceeding by the consent of both parties thereto.” The sixteenth section of the fifth article of the practice act in criminal cases provides that, where the circuit judge has been counsel in a criminal case, the case shall be removed by the order of the court or judge to another circuit. The twenty-first section provides, that whenever it shall be within the knowledge of a court that facts exist which would entitle the defendant, on his application, to have the cause removed, the court may make the order without any application. The forty-first section of this act provides that sections sixteen, seventeen and eighteen shall not apply to St. Louis county, but that changes of venue shall in that court be governed by the special law. The special act regulating changes of venue in St. Louis county is, in our opinion, confined to such changes of venue as are made upon the application of the defendant, and was not designed to affect the right or duty of the criminal court to order a change where the judge of that court had been of counsel. The language of the second section of the act, as well as its manifest intent, concur in establishing this interpretation. The sixteenth section of the general practice act in criminal cases recognizes the impropriety of allowing a judge to try a criminal cause in which he has acted as counsel, and makes provision for the removal of such cases arising anywhere throughout the state except in St. Louis county. This county was expressly excepted from its operation, manifestly for the reason that all original jurisdiction over criminal causes was taken from the circuit court of this county and transferred to a special tribunal. The provision was therefore inapplicable to St. Louis county, had there been no express words of exception in the act. It was probably through mere inadvertence that the special act regulating changes of venue in St. Louis county omitted any provision of the character contained in the sixteenth section of the general act, but the effect of that omission is only to throw the criminal court here upon the general provision contained in the act regulating courts, which we have referred to above, which, taken in connection with the twenty-first section of the criminal practice act and with the fifteenth section of the act which establishes the court (R. C. p. 1590) authorized that court to send the case to the circuit court of St. Louis. We are therefore of opinion that the circuit court had jurisdiction to try this case.
The instructions upon the trial explanatory of the nature of the circumstantial evidence and of homicide in self-defence were objected to on the trial, and it is now insisted that the instruction relative to homicide se defendendo was erroneous, and that the one concerning circumstantial evidence was not sufficiently explicit and full, and should have been accompanied with the instruction asked on that point by the defence.
The court instructed the jury that in order to convict the defendant upon circumstantial evidence alone, “the circumstances tending to show his guilt should be established beyond a rational doubt by the evidence in the cause, and, when established, should point so strongly to the guilt of defe...
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State v. Kring
...44 Mo. 159; State v. Daniels, 66 Mo. 192. The case should have been sent to the St. Louis circuit court on defendant's motion. State v. Houser, 28 Mo. 233. The testimony of the witnesses, as appears from the affidavit, was important and necessary for the defense, and due diligence was shown......
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State v. Kring
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