State v. Mitts
| Decision Date | 11 June 1930 |
| Docket Number | No. 30220.,30220. |
| Citation | 29 S.W.2d 125 |
| Parties | STATE v. MITTS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cedar County; Charles A. Hendricks, Judge.
Sam Mitts was convicted of the unlawful transportation of hootch, moonshine, and corn whisky, and he appeals.
Reversed and remanded.
Stratton Shartel, Atty. Gen. (Lawrence H. Presley, of Buffalo, of counsel), for the State.
By an information filed in the circuit court of Cedar county, the defendant was charged with the unlawful transportation of "hootch, moonshine, corn whisky." He was convicted and sentenced to imprisonment in the penitentiary for two years, and then, in due course, appealed.
No brief has been filed on behalf of the defendant, but we have before us a complete transcript of the record. Among the things complained of in his motion for a new trial is the action of the trial court in overruling his application for a change of venue.
In this connection the record shows the following proceedings: On January 30, 1929, the defendant waived formal arraignment and entered a plea of not guilty. He then filed an application for a continuance, which was overruled. Thereupon he filed an application for a change of venue, in which he alleges that the trial judge is prejudiced against him. This application was overruled "on the ground that sufficient notice had not been given to the prosecuting attorney," and the jury was called to try the case.
The defendant states, in his application, that Hon. Charles A. Hendricks, the judge of the circuit court of Cedar county, "will not afford him a fair trial," because of the bias and prejudice of said judge, and asks "that the venue be changed to some court, or judge, where said prejudice does not exist." The application is supported by the affidavits of the defendant and Lewis Thompson and R. F. Billingsley. In each of these affidavits it is stated that said judge "will not afford the defendant a fair trial," for the reason alleged in the application, and, in the affidavit of Thompson and Billingsley, it is also stated that they are "not of kin to or counsel for the defendant."
Section 3991, Rev. St. 1919, provides that, "When any indictment or criminal prosecution shall be pending in any circuit court or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause in either of the following cases: First, when the judge of the court in which said case is pending is near of kin to the defendant by blood or marriage; or, second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him by blood or marriage; 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." (Our italics.)
Section 3992 provides that, whenever the judge of any circuit court or criminal court shall be disqualified under the provisions of section 3991, the defendant and the prosecuting attorney may, with the approval of the court, agree in writing upon a special judge.
Section 3994 provides for the designation of the judge of another circuit court or criminal court to try the case when no special judge is elected or when a special judge is elected and fails to qualify.
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...the right to a peremptory change of judge upon an application made in compliance with the provisions of those statutes. State v. Mitts, 29 S.W.2d 125 (Mo.1930); State v. Bryant, 24 S.W.2d 1008 (Mo.1930). It has been held the circuit judge against whom the application is directed has authori......