State v. Kring

• Citation: 11 Mo.App. 92
• Parties: STATE OF MISSOURI, Respondent, v. CHARLES F. KRING, Appellant.
• Decision Date: 18 October 1881
• Court: Court of Appeal of Missouri (US)

11 Mo.App. 92

STATE OF MISSOURI, Respondent,

v.CHARLES F. KRING, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 18, 1881.

1. A court whose territorial jurisdiction has been lessened does not lose its right to try an indictment properly returned to it prior to such limitation, if the situs of the crime remains within the jurisdiction.

2. A failure to contradict affidavits in support of a change of venue does not necessitate a granting of the motion.

3. Appellate courts will not interfere with the action of a trial court in refusing to grant a change of venue, if no injustice has been done.

4. A plea of guilty coupled with a condition should be disregarded, and if the defendant refuses to plead further the court should direct a plea of not guilty to be entered.

5. The defendant may be put on trial for murder in the first degree, where the indictment charges that offence, after a sentence under a plea of guilty of murder in the second degree has been set aside and the plea withdrawn.

6. The act of March 26, 1881, which provides for a trial by another judge when the judge of the St. Louis Criminal Court is incompetent, is not in violation of any constitutional provision.

7. The title of the act does not connect incongruous subjects, neither is it a local or special law within the meaning of the constitutional inhibition.

8. The action of the trial court in denying an application for a continuance not in compliance with the statutory requirements, will not be interfered with, on appeal.

9. The statute is substantially complied with if the defendant is furnished with a list of forty-seven qualified jurors forty-eight hours before the trial.

10. A declaration by the deceased, detailing the circumstances of the homicide, made a day or two before her death under a sense of impending dissolution, is competent in a trial for the murder.

APPEAL from the St. Louis Criminal Court, BURCKHARDT, J.

Affirmed.

CHARLES P. JOHNSON, L. D. SEWARD, P. N. JONES, and DANIEL HAY, for the appellant: The indictment, having been found in the county, could not properly be tried in the city of St. Louis.-- The State v. Lewis, 69 Mo. 92. The court erred, under the circumstances, in refusing to grant a change of venue.-- The State v. Gerry, 69 Mo. 430; Freligh v. The State, 8 Mo. 606; The State v. Reed, 11 Mo. 379; The State v. Gamble, 46 Mo. 350. The provision of the statute prohibiting a change of venue from the St. Louis Criminal Court was abrogated and annulled by the new order of things under the Scheme and Charter, and under the constitution of 1875.-- The State ex rel. v. Walsh, 69 Mo. 408. A plea of guilty regularly pleaded and regularly received by the court is equivalent to a conviction.-- The People v. Goldstein, 32 Cal. 432; Shephard v. The People, 25 N. Y. 419. One convicted of murder in the second degree under an indictment for murder in the first degree found prior to 1875, cannot afterwards be tried for murder in the first degree.-- The State v. Ross, 29 Mo. 39; The State v. Smith, 53 Mo. 139. The act of the legislature under which a special judge was appointed to try this cause is unconstitutional.--Const. 1875, Art. IV., sects. 28, 53, 54. A general law does not, by implication, repeal a special law.-- The State v. Pearcy, 44 Mo. 159; The State v. Failer, 49 Mo. 310; The State v. McDonald, 38 Mo. 529. The act of 1877 with reference to special judges does not apply to the St. Louis Criminal Court (Rev. Stats., sect. 1999; The State v. Daniels, 66 Mo. 192); and the order appointing Judge Burckhardt should have been set aside.-- The State v. Houser, 28 Mo. 233. The affidavit for a continuance was in compliance with the statute, and set forth sufficient grounds for a continuance which should have been granted.-- Barnum v. Adams, 31 Mo. 332; 31 Mo. 147; The State v. Klinger, 43 Mo. 127. Certain jurors, having formed opinions as to the guilt or innocence of the accused, were incompetent.-- The State v. Brown, 71 Mo. 454.

JOSEPH R. HARRIS, circuit attorney, for the respondent: Appellate courts will not reverse a question of fact presented and passed on in deciding an application for a change of venue.-- The State v. Guy, 69 Mo. 431; The State v. Brown, 71 Mo. 454. The jurisdiction of the St. Louis Criminal Court to try this cause was not affected by the adoption of the Scheme and Charter.-- The State v. Brown, 71 Mo. 454; The State ex rel. v. Laughlin, 73 Mo. 443. The mandate of the supreme court was properly obeyed, by the trial court, in again placing the defendant on trial under a plea of not guilty entered by direction of the court.-- The State v. Stevens, 71 Mo. 535.BAKEWELL, J., delivered the opinion of the court.

Defendant was indicted at the March term, 1875, of the St. Louis Criminal Court for the murder of Dora C. Broemser. He was convicted of murder in the first degree, and the judgment was reversed on appeal. Two mistrials were then had. At the October term, 1879, defendant pleaded guilty to murder in the second degree, and was sentenced to imprisonment in the penitentiary for twenty-five years. On appeal, this sentence was reversed and the cause remanded. At the May term, 1881, defendant was again convicted of murder in the first degree, and this appeal is from the judgment entered upon that conviction.

It appears from the evidence that on January 4, 1875, Dora C. Broemser was a married woman of respectability, living in St. Louis with her husband; that about eight o'clock on the evening of that day, defendant Kring appeared in the alley in the rear of the residence of Mrs. Broemser, and sent up word to her in the house that he wanted to see her. She sent back word that unless he went away she would send her husband down to him. He replied that she knew her husband was out of town, and that if she did not come down he would come up stairs. She then came to him in the alley, accompanied by her sister-in-law. Defendant then told Mrs. Broemser that he wanted her to marry him. She said that she had a husband and children, and could not do so. He said he must have an immediate answer. She told him she was afraid he would shoot her. He said he was not armed, and required her to say whether she would go with him. She said ““no,” and started to run. Kring then fired at her twice; one shot struck her in the leg; the second penetrated the back below the shoulder blade. The pisto showed that it had missed fire at the third chamber; and Mrs. Broemser states in her dying declaration that, as she was lying on the ground, he put the pistol to her mouth and drew the trigger, but the pistol missed fire. A few days afterwards Mrs. Broemser was delivered of a child, three months before the term, which died before its mother, and on the 16th of January Mrs. Broemser herself died from the effects of the wounds inflicted by Kring.

The defence was insanity. This defence was not established to the satisfaction of the jury.

1. The grand jury which presented the indictment was taken from the body of St. Louis County, before the separation of the city and county, and the cause was tried by the criminal court of the city of St. Louis, after that separation was effected by the adoption of the Scheme and Charter, and after the jurisdiction of the St. Louis Criminal Court had been restricted to the city of St. Louis.

We see no error in this. The grand jury which returned the bill was summoned from the body of the county, or political subdivision of the state, in which the offence was committed. The bill was returned to the St. Louis Criminal Court, the court in which defendant was tried. It is not pretended that at the time of the indictment and the time of the trial, this St. Louis Criminal Court had not jurisdiction over offences committed within the city of St. Louis, or that this offence was not committed within that city. We know of no principle of law which should lead us to declare that, because a territory lying outside of the district within which the offence was committed has, since the commission of the offence, been withdrawn from the jurisdiction of the St. Louis Criminal Court, therefore this indictment, good at the time, has become bad. But, if no ground exists for quashing the indictment, the cause is undoubtedly to be tried on the indictment, and by the court to which the indictment was returned, and which had then, ever since has had, and still has, exclusive original jurisdiction of the crime of murder committed, as in this case, within the corporate limits of the city of St. Louis, those limits not having been restricted in the meantime, and the place of the homicide having been, ever since the creation of the St. Louis Criminal Court, within the territorial limits of its jurisdiction. The objection that the indictment was found in one county, and the trial had in a court that has lost jurisdiction over that county, seems to be a play upon words. The indictment was found in a political subdivision of the state over which the court to which it was returned had then jurisdiction; and within which the offence was committed; and, the court, remaining the same court, the offence is tried in that court, which has never lost jurisdiction over the territory within which the offence was committed, that territory being, from first to last, a part of a political subdivision of the state within which the offence was committed, the indictment found, and the trial had.

2. We see no error in the action of the trial court in overruling the motion for a change of venue. Eleven witnesses, including three of the counsel for appellant, testified in support of the motion, that they did not think that defendant could have a fair trial in the city of St. Louis. The contention seems to be that, because there was no cross-examination, and because no witnesses were examined in rebuttal, the trial court ought to have granted the motion. We think that unless facts and circumstances appeared, to the satisfaction of the court, establishing the...