State v. Long

• Decision Date: 18 February 1908
• Citation: 108 S.W. 35,209 Mo. 366
• Parties: STATE v. LONG.
• Court: Missouri Supreme Court

108 S.W. 35

209 Mo. 366

STATE v. LONG.

Supreme Court of Missouri, Division No. 2.

February 18, 1908.

1. INDICTMENT — INDORSEMENT OF NAMES OF WITNESSES — TIME FOR OBJECTION.

It is too late after final judgment to raise the objection that the names of some of the witnesses were not indorsed on the indictment.

2. HOMICIDE — INDICTMENT — LAYING VENUE.

An indictment, which, after charging that R., at the county of W., on a certain date, inflicted a wound on B. of which he on said day, at the county of W., died, charges that J. "then and there" aided and abetted, sufficiently lays the venue as to J.

3. INDICTMENT — LAYING VENUE.

By express provision of Rev. St. 1899, § 2527 [Ann. St. 1906, p. 1505], it is not necessary to state the venue in the indictment, but the county named in the margin thereof shall be taken to be the venue.

4. SAME — PARTIES TO OFFENSE.

An indictment, alleging all the acts to have been done feloniously, willfully, deliberately, premeditatedly, on purpose, and of malice aforethought, which charges that at a certain time and place R. made an assault on B. with a deadly weapon, a certain knife, and then and there stabbed him and inflicted on him a mortal wound of which he then and there died, and that J. was present aiding and abetting R. the murder in such manner and form to do, is sufficient to charge R. and J. with the murder of B.

5. CRIMINAL LAW — CHANGE OF VENUE — DISQUALIFICATION OF JUDGE.

Under Rev. St. 1899, § 2597 [Ann. St. 1906, p. 1538], providing that, if the regular judge shall be incompetent to sit in a case, he shall request the judge of another circuit to try it, and if the judge so requested shall fail to appear, the judge of the court may reset the case for the convenience of the judge so requested, or may notify and request the judge of another circuit to appear and try the cause, and should said judge so requested fail to appear and hold the court at the time appointed, the judge of the court shall order a change of venue, a change of venue is not required on the first judge requested failing to appear, but another judge may be called in to try the case.

6. SAME — PRESENCE OF DEFENDANT AT TRIAL.

Disqualification of the regular judge by himself, his calling in of another judge to try the case, the adjournment of court by the sheriff for failure of the other judge to appear, and the filing and overruling of defendant's applications for a change of venue and for continuance, are not steps in or part of the trial, at which Rev. St. 1899, § 2610 [Ann. St. 1906, p. 1548], provides one indicted for felony shall be present.

7. SAME — APPEAL — PRESUMPTION.

By express provision of Rev. St. 1899, § 2610 [Ann. St. 1906, p. 1548], when the record shows defendant was present at the commencement or any other stage of the trial, it will be presumed, in the absence of a showing to the contrary, that he was present during the whole trial.

8. SAME — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

Excluding evidence of defendant's good character is harmless, where the objection is "for the reason that his good reputation is conceded."

9. SAME — DEMONSTRATIVE EVIDENCE.

Admission in a homicide case of deceased's clothing to show where he was stabbed is not error.

10. SAME — APPEAL — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

Exclusion of testimony that, if defendant had taken part in the encounter, witness could have seen him, was harmless; he having testified that he was on the scene, and that defendant was by his side and took no part in the struggle.

11. SAME.

So exclusion of such testimony by a witness, who had also testified that he was standing within 12 or 15 feet of deceased and R., and could see them while they were engaged in the difficulty, and did not see defendant there at all, and saw no one but R. hit deceased or take part in the difficulty, is harmless.

12. SAME — HEARSAY.

A question to a witness, who testified that he did not go to the place where deceased was killed till after the difficulty, and did not see defendant there, whether anything was said over the body of deceased about any one, except R., having hit him, calls for hearsay.

13. SAME — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

Exclusion of testimony that witness knew defendant did not go to deceased in the church and take him out doors, where he was killed before the service was over, was harmless; he having testified that he could have seen defendant if he had taken deceased out of the church, and that defendant did not leave his seat during the services.

14. SAME — REVIEW — ERROR NOT ASSIGNED IN MOTION FOR NEW TRIAL.

Allowing an attorney, other than the prosecuting attorney to make the closing argument, not having been assigned as error in the motion for new trial, is not reviewable.

15. SAME.

Any error in the giving of instructions, not having been assigned in the motion for new trial, is not reviewable.

16. SAME — INSTRUCTIONS REQUESTED AND GIVEN.

Refusal of instructions requested by defendant was not error, they being fully covered by those given by the court of its own motion.

17. SAME — REVIEW — SUFFICIENCY OF EVIDENCE.

Though the evidence in a homicide case is conflicting, there being substantial evidence connecting defendant with the crime to sustain the

conviction, it will not be disturbed on the ground of insufficiency of evidence.

Appeal from Circuit Court, Wright County; W. H. Martin, Special Judge.

John Long was convicted of manslaughter, and appeals. Affirmed.

W. S. Pope, for appellant. The Attorney General and Wm. H. Martin, for the State.

GANTT, J.

At the March term, 1905, the grand jury of Wright county returned an indictment against Rankin Long and John Long, the defendant herein, charging that the said Rankin Long on the 9th day of March, 1905, at the county of Wright, state of Missouri, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought, did make an assault in and upon one Joseph Buttram, and with a certain deadly weapon, to wit, a certain knife, which he, the said Rankin Long, in his right hand then and there had and held, the said Joseph Buttram feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did strike, stab, and thrust in and upon the left side of the body, giving to the said Joseph Buttram then and there with the knife aforesaid in and upon the left side of the body of him the said Joseph Buttram one mortal wound of the length of one inch and of the breadth of one inch and of the depth of five inches, of which said mortal wound the said Joseph Buttram did, on the 9th day of March, 1905, at the county of Wright, and state aforesaid, of the mortal wound aforesaid, instantly die. And the jurors aforesaid upon their oath aforesaid do further charge and present that one John Long then and there feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought was present, aiding, helping, abetting, assisting, comforting, and maintaining the said Rankin Long the felony and murder aforesaid in manner and form aforesaid to do and commit. A severance was granted, and it seems that Rankin Long was tried and convicted of murder in the second degree. After several continuances Judge Argus Cox, the regular judge of said circuit, disqualified himself on the record, and the prosecuting attorney and the defendant not being able to agree upon some attorney to sit as special judge, Judge Cox requested Judge J. L. Fort, the judge of the Twenty-Second judicial circuit, to try the cause, and set the cause down for April 23, 1906, for hearing. On April 23, 1906, Judge Fort being unable to be present and hold the court, the cause was continued until July 2, 1906. On July 2d, Judge Fort again failing to appear, Judge Cox requested Judge William H. Martin of the Fourteenth judicial circuit to try the case, and the cause was set down for July 2d, and on that date the cause was reset for the second Monday in September, 1906. On this last-mentioned date the court met pursuant to adjournment, and Judge Martin appeared and proceeded to preside in the cause, and the defendant filed an application for continuance, which was overruled, but the court reset the cause for October 10, 1906, to enable the defendant to secure his absent witnesses. On October 10, 1906, the court met pursuant to adjournment, Judge Martin present, and the defendant appeared in person, and was arraigned and entered his plea of not guilty. And on the next day, October 11th, the record recites: "State of Missouri v. John Long. Now comes the prosecuting attorney, who prosecutes the pleas of the state in its behalf, and also comes the defendant in person and by his attorneys, and both announce ready for trial." Thereupon the jury was impaneled and sworn as the law directs, and after hearing the evidence offered by the state the defendant, by his attorneys, filed his demurrer to the evidence, which was overruled, and on the next day, the record proceeds, the defendant, by his attorneys, filed his motion to require the prosecuting attorney to close the argument in the case, which motion was overruled. The record proceeds then to state: "And the jury, after hearing all the evidence offered by the state and the defendant, instructions of the court, and argument of the counsel, doth retire to consider their verdict." And on the next day the record recites: "Now on this day comes the jury in open court, and return the following verdict: `We, the jury, find the defendant guilty of manslaughter in the fourth degree, and assess his punishment at imprisonment in the penitentiary for a period of two years. J. H. Pool, Foreman.'" And afterwards, within four days, the defendant, by his attorneys, filed his motions for new trial and in arrest of judgment, which were taken up and overruled, and the defendant sentenced to the penitentiary for a term of two years. From that sentence, he was granted an appeal to this court.

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