State v. Lonon
| Decision Date | 14 December 1932 |
| Docket Number | 32417 |
| Citation | 56 S.W.2d 382 |
| Parties | STATE v. LONON |
| Court | Missouri Supreme Court |
McKay & Peal, of Caruthersville, for appellant.
Stratton Shartel, Atty. Gen. (Lieutellus Cunningham, of Jefferson City, of counsel), for the State.
Appellant and Tromo Lonon and Frank Reed were jointly charged, by an information filed in the circuit court of New Madrid county, Mo., with the crime of robbery in the first degree by means of a dangerous and deadly weapon. An application for a change of venue was granted and the cause was transferred to Pemiscot county in the same circuit. When the case was called for trial, appellant filed an application for a change of venue against the regular judge. The court called Hon. Will H. D. Green, Judge of the Twentieth judicial circuit, to try the case. When the case was again called for trial, appellant failed to appear. His bond was forfeited and an alias capias ordered. Later appellant was apprehended and tried before a jury. On September 10, 1931, the jury returned a verdict of guilty and assessed appellant's punishment at imprisonment in the penitentiary for a term of nineteen years. Sentence followed the overruling of the motion for a new trial. An appeal was taken to this court.
The case against Tromo Lonon (Mo. Sup.) 56 S.W.2d 378, not yet reported [in State Report], was decided at this term. The opinion in that case contains a complete statement of the facts and circumstances with reference to the alleged crime. No point is preserved for our review with reference to the admission or rejection of testimony. Neither is it contended that the evidence is not sufficient to sustain a conviction. The evidence adduced at this trial is substantially the same as in the case of Tromo Lonon. Therefore, only a short statement will be made in this case.
The evidence on part of the state tends to prove that appellant and his codefendants, on April 15, 1931, followed J. L Bradshaw and his wife, who were traveling in a Ford coupe, and while on highway No. 61 attempted to stop them. Bradshaw fearing a robbery stopped his car in Portageville, New Madrid county, Mo., thinking that defendants would not rob him if there were houses nearby. It was dark, and, when Bradshaw stopped, defendant and his companions stopped their car near Bradshaw's and went to Bradshaw's car; threatened him with a pistol; took $ 45 out of his vest pocket and the keys from his car. The state offered evidence corroborating the testimony of the Bradshaws. Defendant in this case, as in the case of Tromo Lonon, admitted chasing Mr. and Mrs. Bradshaw, but denied having a pistol or robbing Bradshaw of any money. Defendant claimed that he and his companions were trying to secure delivery of a case of whisky, which he claimed they had purchased of Bradshaw a week previous.
A plea in abatement was filed in the circuit court of Pemiscot county, questioning the jurisdiction of that court on the ground that the clerk of the circuit court of New Madrid county, Mo., did not transmit to the Pemiscot county circuit court a certified copy of the proceedings in the case, but instead transmitted the original papers and files. The plea was overruled and this ruling is assigned as error. In view of the record in this case appellant is in no position to complain of this irregularity. Appellant asked for and was granted a change of venue from New Madrid county. In the order transferring the case to Pemiscot county it is recited that, 'by agreement, the original file papers in said cause are to be transmitted to the clerk of said court in lieu of a complete transcript.' The irregularity did not deprive the circuit court of Pemiscot county of jurisdiction of the case. Requiring a transcript to be transmitted is a matter of procedure only and may be waived by a defendant. State v. Thomas, 301 Mo. 603, 256 S.W. 1028. The record discloses that defendant gave bond in the New Madrid circuit court for his appearance in the Pemiscot circuit court. Appellant also waived any irregularity in the procedure that did not render the proceedings void with reference to the change of venue from New Madrid county, by filing in the circuit court of Pemiscot county an application for a change of venue from the regular judge and thereby submitting himself to the jurisdiction of the court. State v. Ottinger (Mo. Sup.) 36 S.W.2d 942, loc. cit. 943(1), and cases there cited; 16 C.J., pp. 220, 221, §§ 335, 339; State v. Thomas, supra.
Appellant next filed an application for a continuance. The trial court overruled the application and assigned as a reason therefor that proper diligence was not shown to obtain the evidence referred to in the application. Appellant complains of this ruling. The action of the trial court must be sustained. It appears from the record that the state encountered some difficulty in bringing the defendant to trial. The prosecuting attorney filed the information in this case on May 2, 1931, in the New Madrid county circuit court. May 19th, an application for a change of venue was granted. On August 4th, a plea in abatement was filed, as well as a motion to quash the information. The plea and motion were overruled. Appellant then filed an application for continuance. When this was overruled, an affidavit for a change of venue was filed, charging prejudice on part of the regular judge. A judge of a neighboring circuit was called and the case set for trial August 5, 1931. On August 5th appellant failed to appear and his bond was forfeited. September 9, 1931, after appellant's second motion to quash the information and his second application for continuance had been overruled, he was finally brought to trial. No showing was made of any attempt to obtain the evidence referred to in the application for a continuance. Under these circumstances the trial court properly denied the...
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