State v. McDonald

• Decision Date: 17 August 1938
• Docket Number: 34766
• Parties: The State v. Felix Francis McDonald, Appellant
• Court: Missouri Supreme Court

119 S.W.2d 286

342 Mo. 998

The State v. Felix Francis McDonald, Appellant

No. 34766

Supreme Court of Missouri

August 17, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Julius R Nolte, Judge.

Affirmed.

Verne R. C. Lacy for appellant.

(1) Upon the filing of affidavits by a defendant in compliance with the fourth clause of Section 3648, Revised Statutes 1929, the presiding judge is disqualified from trying the case. Secs. 3648, 3649, R. S. 1929; State ex rel McAllister v. Slate, 278 Mo. 570, 214 S.W. 85, 91; State v. Mitts, 29 S.W.2d 126. (2) Partiality on the part of a sheriff disqualifies him from performing the duties of his office in a given case, and in a criminal case a sheriff who assists in securing evidence to convict a defendant, after the arrest and apprehension of a defendant is acting in excess of his duties and is partial to the State as against the defendant. Sec. 19, Art. IX, Mo. Const.; Secs. 8750, 11516, 11518, R. S. 1929; 24 R. C. L., p. 923, sec. 12; State ex rel. Beach v. Finn, 4 Mo.App. 353; State v. Hultz, 106 Mo. 41, 16 S.W. 941. (3) The right of a defendant to inspect the minutes of the grand jury is a necessary accompaniment to the right of impeachment by members of the grand jury given by Section 3533, Revised Statutes 1929. State v. Clough, 38 S.W.2d 39; State v. Thomas, 99 Mo. 235, 12 S.W. 651; State v. Rosegrant, 338 Mo. 1153. (4) An application for a continuance should be granted where the statutory requirements are met, and the action of a trial court in overruling such an application is reviewable on appeal. State v. Maddox, 117 Mo. 667, 23 S.W. 775; State v. Richardson, 46 S.W.2d 579. (5) It is reversible error for a prosecutor to have witnesses for a defendant arrested during the course of a trial on a suspicion of perjury, where such conduct results in the intimidation of other witnesses for the defendant and deprives the defendant of testimony which would otherwise have been submitted to the jury. State v. McKay, 89 S.C. 234, 71 S.E. 858; State v. Williams, 124 La. 779, 50 So. 711; People v. Mahach, 224 P. 130; People v. Myers, 10 P.2d 499.

Roy McKittrick, Attorney General, William W. Barnes and Wm. Orr Sawyers, Assistant Attorneys General, for respondent.

(1) Appellant's special plea in bar to the jurisdiction of the court was properly overruled. Defendant's incarceration for previous offense is no bar to the prosecution in the instant offense. State v. Connell, 49 Mo. 289; State ex rel. v. Breuer, 304 Mo. 394, 264 S.W. 1; State ex rel. Billings v. Rudolph, 17 S.W.2d 932, 322 Mo. 1163. (2) The indictment is definite and certain on points raised in motion to quash. Indictment is sufficient in form and substance to place the venue of the instant offense. State v. McGee, 83 S.W.2d 110, 336 Mo. 1082. (3) Appellant's second special plea in bar to jurisdiction of court properly overruled, because the circuit court to whom the cause was removed had jurisdiction over the defendant. Sec. 3649, R. S. 1929; State v. Allen, 267 Mo. 58, 183 S.W. 329; State v. DeShon, 68 S.W.2d 808, 334 Mo. 862; State v. Gillham, 174 Mo. 674, 74 S.W. 859, 860; Sec. 4020, R. S. 1929; State v. Peak, 68 S.W.2d 701; State v. McGee, 83 S.W.2d 111, 336 Mo. 1082. (4) Appellant's motion to inspect grand jury minutes properly denied. Impeachment of witness by defendant by use of minutes of grand jury is not proper. Secs. 3522, 3533, R. S. 1929. (5) Disqualification of the sheriff is discretionary with trial court, whose discretion was proper in the instant case. Sec. 1845, R. S. 1929; State v. Young, 314 Mo. 626, 286 S.W. 29; State v. Stewart, 274 Mo. 656, 204 S.W. 10; State v. Boesel, 64 S.W.2d 245. (6) A change of venue granted on account of bias and prejudice of one trial judge precludes a second application based upon that ground in the instant case. Secs. 3637, 3648, R. S. 1929; State ex rel. McAllister v. Slate, 278 Mo. 577, 214 S.W. 85; State v. Mitts, 29 S.W.2d 126; Secs. 3649, 3651, R. S. 1929; State v. DeShon, 68 S.W.2d 805, 334 Mo. 868; State v. Gates, 20 Mo. 403; State ex rel. v. Wofford, 24 S.W. 764, 119 Mo. 381; State v. Callaway, 154 Mo. 96, 55 S.W. 444; State v. Wagner, 311 Mo. 404, 279 S.W. 23. (7) Affidavit for continuance insufficient in substance, hence was properly overruled. Sec. 3654, R. S. 1929; State v. Lonon, 56 S.W.2d 381, 331 Mo. 591; State v. Dettmer, 124 Mo. 432, 27 S.W. 1117.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Felix Francis McDonald appeals from a judgment imposing a sentence of sixty years' imprisonment under Section 4020, Revised Statutes 1929 (Mo. Stat. Ann., p. 2827) for the kidnaping of Isaac Dee Kelley. He admits a case made by the State. The case reaches the writer upon reassignment.

The indictment, charging appellant and others, was returned into the Circuit Court of St. Louis County on March 13, 1934, and the cause was assigned to Division No. 3 of said court. On March 14, Judge Fred E. Mueller of said Division disqualified himself and the cause was transferred to Division No. 4. On June 11, 1934, said defendants filed a joint application alleging they were proceeding under the third clause of Section 3648, Revised Statutes 1929 (Mo. Stat. Ann., p. 3203), to disqualify Judge Robert W. McElhinney, Judge of Division No. 4 of said court, on the ground said Judge was "prejudiced against your petitioners." Whereupon, the court transferred said cause to Division No. 1 of said court. On January 21, 1935, appellant filed an application alleging that he was proceeding under said Section 3648 to disqualify Judge Julius R. Nolte, Judge of Division No. 1 of said court, on the ground said Judge "will not afford your petitioner a fair trial." Each of said applications alleged it was supported by the affidavits of two reputable persons, not of kin to or counsel for the defendant, and the supporting affidavits were filed with their respective application. Judge Nolte overruled the second application and appellant asserts error thereon.

Under said Section 3648 judges are deemed incompetent to hear and try causes under four specified conditions, the conditions here involved being: ". . . or, third, when the judge is in anywise interested or prejudiced, or shall have been counsel in the cause; or, fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial." Section 3649, Revised Statutes 1929 (Mo. Stat. Ann., p. 3204), designates an application to disqualify a trial judge under said Section 3648 an "application for change of venue," and Section 3637, Revised Statutes 1929 (Mo. Stat. Ann., p. 3198), provides ". . . and in no case shall a second removal of any cause be allowed." Said statutory enactments constitute a portion of our general code of criminal procedure and State ex rel. McAllister v. Slate, 279 Mo. 570, 585, 214 S.W. 85, 90 (13), treating historically of the law, refers to Revised Statutes 1835, page 486, Section 15, et seq. Said Section 15, in part, read: "When any indictment, or criminal prosecution, shall be pending in any circuit court, the same shall be removed by the order of such court, or the judge thereof, to the circuit court of some county in a different circuit, in either of the following cases: [Here follow four specified circumstances or grounds, embracing, in practically identical language, grounds designated "First," "Second," and "Third" in now Sec. 3648, supra]." Section 23, page 487, Revised Statutes 1835, is now Section 3637, supra; and it is manifest that in 1835 the clause ". . . and in no case shall a second removal of any cause be allowed" of said Section 23, embraced removals under then Section 15 for causes resting upon the disqualification of trial judges. This appears to have been the declared policy of this State from the beginning (Ter. Laws, Vol. 1, p. 1018, sec. 1; R. S. 1825, p. 787, sec. 2; Laws 1833, Vol. 2, p. 391, sec. 9). Consult State v. Greenwade, 72 Mo. 298, 302 (4), 304; State v. Anderson, 96 Mo. 246, 247(4), 9 S.W. 636, 638; State v. Callaway, 154 Mo. 91, 96, 55 S.W. 444, 445; State v. Wagner, 311 Mo. 391, 404, 279 S.W. 23, 26(3); State v. DeShon, 334 Mo. 862, 865, 68 S.W.2d 805, 807(1) (stating: ". . . we have consistently ruled that the applicant is entitled to only one change of venue," a case wherein appellant had filed an application to disqualify the three judges of the Circuit Court of Buchanan county on the ground each was biased and prejudiced).

But the County of St. Louis constitutes the Thirteenth Judicial Circuit [Sec. 1977, R. S. 1929, Mo. Stat. Ann., p. 2621] and statutory enactments exist for the substitution of trial judges in said circuit [Secs. 14611-14630, R. S. 1929, Mo. Stat. Ann., p. 2634-2640; Laws 1909, pp. 408-410; Laws 1929, pp. 157-161]. Section 14626 relates to the substitution of trial judges. In State v. Rosegrant, 338 Mo. 1153, 1161(2), 93 S.W.2d 961, 965(4, 5), we considered Section 14626 embraced criminal causes pending in said Thirteenth Circuit. It is apparent from the provisions of said Section 14626 (". . . Only one such application shall be made by the same party in the same case. . . . If application for a change of venue in either division be made for any other cause or causes than the foregoing against the judge of the other divisions, the judge before whom the same is made shall determine whether or not the facts exist as charged against the other judges, and if all the judges are disqualified, then such change may be allowed to the circuit court of some other country . . .") that if appellant desired to attack the competency of Judge Nolte to preside, then such...