State v. Lanahan

• Decision Date: 17 May 1898
• Citation: 45 S.W. 1090,144 Mo. 31
• Parties: STATE v. LANAHAN.
• Court: Missouri Supreme Court

45 S.W. 1090

144 Mo. 31

STATE v. LANAHAN.

Supreme Court of Missouri, Division No. 2.

May 17, 1898.

APPLICATION FOR CHANGE OF VENUE — DISCRETION OF COURTS — ELECTION OF COUNTS.

1. An application for a change of venue was not supported by the affidavit of two credible citizens of the county, as required by Rev. St. 1889, § 4156. Held that, the right to change of venue being statutory, the application was insufficient.

2. The action of a court in exercising its discretion will not be interfered with in the absence of proof that such discretion was unwisely exercised.

3. An indictment for murder was framed in two counts. One alleged that the crime was committed by striking deceased upon the head with a certain weapon; and the other, by cutting and stabbing deceased in and upon the lower part of the body with a certain knife. A motion by accused to require the state to elect was refused. Held no error, since both counts charged the same offense, and the same evidence was permissible under either.

Appeal from circuit court, Cole county; D. W. Shackleford, Judge.

Tobe Lanahan was convicted of murder in the first degree, and appeals. Affirmed.

H. A. Edwards, for appellant. E. C. Crow, Atty. Gen., for the State.

BURGESS, J.

At the March term, 1897, of the circuit court of Cole county, the defendant, a negro, was indicted by the grand jury of said county for murder in the first degree, for the killing of Willie Gains, a negro girl, in Jefferson City, on the 25th day of December, 1896. The indictment is in two counts. In the first count, the murder is alleged to have been committed by striking and wounding the deceased upon the head with a certain weapon, a description of which was to the jurors unknown; and in the other, by cutting and stabbing her in and upon the lower part of her body with a certain knife. By written stipulation between F. E. Luckett, the prosecuting attorney of Cole county, and the defendant, the case was tried before the Honorable J. R. Edwards, as special judge. At the July term, 1897, of said circuit court, defendant filed his application for a change of the venue of said cause from the county of Cole, upon the ground of the prejudice of the people thereof against him, and, in support of said motion, offered oral testimony, which was excluded by the court, for the reason that the law requires such application to be supported by the affidavits of two credible witnesses before any oral testimony can be heard, to which ruling of the court defendant duly excepted. Defendant thereafter, at the same term of said court, filed his motion to disqualify the sheriff of the county and his deputies, and to appoint an elisor to take charge of the jury, and wait upon the court, upon the ground that said sheriff, S. H. Sone, and his deputies, were biased and prejudiced against defendant, and would prevent him from having a fair trial. This motion was also overruled, over the objection and exception of defendant. Defendant next filed his motion that the state be required to elect upon which count in the indictment it would proceed to trial, which was also overruled by the court, and defendant excepted. On the 26th day of August, 1897, it being the 16th day of the July term, 1897, defendant was put upon his trial, and convicted of murder in the first degree. In due time, he filed motions for new trial and in arrest, which being overruled, he saved his exceptions and appealed.

The facts are, as disclosed by the record, that Tobe Lanahan, the defendant, was employed by Mr. Stampfli, who had a furniture store on High street; and the duties of defendant were to drive the furniture wagon, sweep out the store, and carry goods, and do the heavy work generally about the place. The building was a two-story brick in front, and three stories, including the basement, in the rear, the ground sloping northward, and the building fronting southward. In the rear was a porch and a pair of steps leading downward to the ground, and then another flight down three steps to a door going into the basement. The murder was committed on the night of December 25, 1896; and on the morning of December 26, 1896, James Myers, another employé of Mr. Stampfli's, a white man, about 7:30 o'clock in the morning, was going down the steps in the rear into the basement, and discovered the murdered girl lying on the ground in the alley, in the rear of the store. The body was removed into the basement of the Stampfli store. Myers then went up to the second floor of the Stampfli building, where defendant was, and told him of the murder, and said to him that he (the defendant) was suspected of the crime. Defendant then said to Myers, "You take this big knife, and I will say I gave it to you, or sold it to you, or sold it or gave it to some one else." Myers refused to take the knife, and defendant pitched it on top of a wardrobe in the furniture store, from which it was afterwards taken and given into the hands of Squire Stone, and by him given into the hands of the prosecuting officer. The evidence showed that the defendant was seen on the corner of High and Jefferson streets with the deceased about half past 5 o'clock in the evening. The mother of deceased had sent her from her home to Brandenberger's drug store on an errand, and the girl, meeting defendant, walked up Jefferson street to High street, and they were there seen together. The girl, it seems, went eastward on High street, to a store; and defendant went across the street, towards the corner leading to Stampfli's store. The defendant was next seen with the girl going down Jefferson street, towards the mouth of the alley that runs in the rear of Stampfli's store, and at that time he had his arm around her. He was next seen a little later in the evening, by two young men,...