State v. Moore

• Decision Date: 08 May 1900
• Citation: 56 S.W. 900,156 Mo. 135
• Parties: STATE v. MOORE.
• Court: Missouri Supreme Court

56 S.W. 900

156 Mo. 135

STATE v. MOORE.

Supreme Court of Missouri, Division No. 2.

May 8, 1900.

CRIMINAL LAW — RECORD — CHANGE OF VENUE — FORMER ACQUITTAL — GRAND JURY — SUMMONING JURORS — INDICTMENT.

1. Objection to the denial of a motion for a change of venue in a criminal case is unavailable on appeal where the record shows that the motion was not made under the indictment on which the defendant was convicted.

2. That a judge was disqualified from presiding at the trial on an indictment which was quashed did not disqualify him from summoning a special grand jury which returned a new indictment charging the same offense.

3. An objection of an indictment on the ground that the judge who summoned the grand jury was disqualified cannot be raised for the first time on appeal.

4. Alleged error in sustaining a motion to strike out the plea of former acquittal cannot be reviewed in the absence of anything in the record to show that the indictment on which the first trial was had was for the same offense as that charged in the indictment on which defendant was convicted.

Appeal from circuit court, Hickory county; James T. Neville, Judge.

William Moore, convicted of obtaining a deed by false pretenses, appeals. Affirmed.

J. W. Montgomery, for appellant. Edward C. Crow, Atty. Gen., and Sam B. Jeffries, for the State.

BURGESS, J.

At the May term, 1898, of the circuit court of Hickory county, defendant was indicted by the grand jury of said county for obtaining by false pretenses and representations a deed from one John T. Dixon to a certain tract of land in said county, of which he was the owner, of the alleged value of $2,000. At the following November term of said court, he was tried by a jury, and, under the instructions of the court, acquitted upon the ground that there was a variance between the charge in the indictment and the proof made upon the trial. At the same term of said court the grand jury of said county returned a new indictment against H. C. Nelson and the defendant, William Moore, for the same offense. At the May term, 1899, of said court, defendant filed his motion for a change of venue from the Honorable Argus Cox, the regular judge, then presiding, whereupon the cause was set for trial July 31, 1899, and the Honorable James T. Neville, judge of the Twenty-Second judicial circuit, called to try the case. On the day last named the case came on for trial before the Honorable James T. Neville. Defendant then filed his application for a change of venue from the county, which was overruled. He then filed his motion to quash the indictment, which was sustained, and defendant ordered held to await the action of a special grand jury. The Honorable Argus Cox then appeared in court, and by order entered of record made an order for a special grand jury, in pursuance of which a special grand jury was summoned, by whom defendant and Nelson were again indicted for the same offense. This last indictment charges that: "On or about the 18th day of May, 1897, at the county and state aforesaid, H. C. Nelson and William Moore did then and there unlawfully, willfully, designedly, and feloniously, with the intent to cheat and defraud one John T. Dixon, did then and there unlawfully, falsely, fraudulently, and feloniously pretend and represent to the said John T. Dixon that he, the said H. C. Nelson, was the owner in his own right in fee, under good and sufficient conveyance from George Garrison, of a certain farm or lands well known to the said John T. Dixon and to the said defendants as the Breitenstein land or farm, and that it was at one time owned by the said Breitenstein, and conveyed by the said Breitenstein to George Garrison; and they, the said H. C. Nelson and the said William Moore, further pretended and represented to the said John T. Dixon that the said Breitenstein farm or land was designated by government survey as the east ½ of the northeast qr. of section 21, township No. 10, of range No. 14, in Cass county, Nebraska, and that the said land or farm, with the improvements thereon, were worth the sum of two thousand dollars. And the said John T. Dixon being then and there at the time the owner of the following described lands situate in the county of Hickory, and state of Missouri, to wit, the north ½ of the southwest qr. and the north ½ of the southeast qr. of section No. 13, township No. 38, of range No. 21, and said lands being of the value of two thousand dollars, and the said John T. Dixon, believing and relying on the said false and fraudulent representations and pretenses so made as aforesaid by the said H. C. Nelson and the said William Moore to be true, and being deceived thereby, was induced by reason of said false and fraudulent representations and pretenses aforesaid to sign, acknowledge, and deliver to the said H. C. Nelson a warranty deed conveying all the right, title, and interest of the said John T. Dixon in and to the north ½ of the southeast qr. and the north ½ of the southwest qr. of section...