State v. Myers

• Decision Date: 02 March 1929
• Docket Number: No. 27378.,27378.
• Parties: THE STATE v. ROY T. MYERS, Appellant.
• Court: Missouri Supreme Court

14 S.W.2d 447

THE STATE v. ROY T. MYERS, Appellant.

No. 27378.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Adair Circuit Court. — Hon. James A. Cooley, Judge

REVERSED AND REMANDED.

Reed, Holmes & Taylor, L.W. Reed, John H. Taylor, Paul D. Kitt and Philip J. Fowler for appellant.

Defendant's application to disqualify the judge because of bias and prejudice should have been sustained. (1) No application to disqualify the judge had theretofore been made by defendant. (2) No application for change of venue from Scotland County was made by defendant. The venue of the cause was changed to Adair County at the request and by the agreement of the prosecuting attorney and defendant. (3) No notice of affidavit to disqualify judge is required. Question of notice was not raised in trial court. Secs. 3991, 3992, R.S. 1919.

North T. Gentry, Attorney-General, and David P. Janes, Assistant Attorney-General, for respondent.

(1) On the 10th day of July, 1926, defendant withdrew his notice of intention to apply for change of venue which had been served on the State's attorneys, the basis of this application being the bias and prejudice of the trial judge of the Adair County Circuit Court. The cause was then continued on defendant's application to August 25, 1926. On August 27, 1926, after the case had been called, two pleas in abatement filed and a great amount of testimony heard thereon, and the pleas overruled, defendant filed his application for a change of venue on the ground of bias and prejudice of the trial judge of the Adair County Circuit Court against the defendant, and asked that the cause be sent to some other court and judge where such prejudice did not exist. This application is accompanied and supported by two affidavits of citizens of that circuit. According to the provisions of Sec. 3991, R.S. 1919, this application and the supporting affidavits are in due form. It is submitted, however, that they were not filed at the proper time; that defendant has not shown due diligence in investigating and running down the rumors of bias and prejudice of the trial judge, which rumors, he states, came to him during the first part of July, over a month preceding the trial of this case. It seems strange that he would withdraw his notice of application in the face of such rumors and then sit idly by until the court had made an adverse ruling before asking a change of venue on the grounds of bias and prejudice. He waited until the case was called, the judge had assumed jurisdiction and had heard a great amount of testimony on his two pleas in abatement before he filed this application. He alleges, however, that this knowledge came to him at four o'clock in the afternoon of August 25th after the pleas in abatement had been taken up and been heard. This was most fortunate for the defendant. Had the learned trial judge not ruled adversely on defendant's pleas in abatement it is to be seriously doubted that his bias and prejudice would ever have reached the record in this case. It is even to be doubted that the thought of bias and prejudice would seriously have entered the mind of the defendant but for these two adverse rulings. These rulings by the trial court were judicial acts and bias and prejudice on his part cannot be predicated thereon. State ex rel. McAllister v. Slate, 278 Mo. 582. (2) It is not contemplated that the law intends to make it possible for a defendant to carry along with him an application for change of venue such as was filed in this case and keep the same concealed until an unfavorable ruling by the court calls it forth. As State v. Caudle, 174 Mo. 392: "The courts are not to be trifled with after this manner." See, also, State v. Sanders, 106 Mo. 188; State ex rel. McAllister v. Slate, 278 Mo. 570.

HENWOOD, C.

By an information filed in the Circuit Court of Scotland County, the defendant, Roy T. Myers, was charged (under Sec. 3365, R.S. 1919) with receiving a deposit of $402 in the Citizens Trust Company of Gorin, Missouri, while acting as treasurer of said trust company, and with knowledge that it was then insolvent and in failing circumstances. The venue was changed to the Circuit Court of Adair County, where he was found guilty and his punishment assessed at imprisonment in the penitentiary for five years. He was sentenced accordingly, and appealed. The case comes to the writer of this opinion upon reassignment, following a rehearing in this court.

The original information was filed on November 9, 1925, and, on the same day, a change of venue was granted to the Circuit Court of Adair County, upon the joint application of the prosecuting attorney and the defendant, and upon their agreement that the defendant could not have a fair and impartial trial in the counties of Scotland, Clark and Schuyler, comprising the 37th Judicial Circuit, because of the bias and prejudice of the inhabitants of said counties against the defendant. On January 20, 1926, an amended information was filed in the Circuit Court of Adair County, and, thereafter, the case was continued, from time to time, by agreement of counsel and by the court of its own motion, until July 10, 1926, at which time it was again continued until August 25, 1926, upon the application of the defendant. On August 25, 1926, the defendant's application for another continuance and his motion to quash the amended information were overruled, and, thereupon, the defendant filed two separate pleas in abatement. Evidence was heard in support of and in opposition to both of the pleas in abatement, and at the conclusion of the hearing upon the second plea in abatement, on August 27, 1926, and before the court had ruled thereon, the defendant filed an application for a change of venue, in which he alleged that the regular judge of the Circuit Court of Adair County would not afford him a fair trial because of the bias and prejudice of said judge against him, and in which he asked that the case be tried by some judge who did not have such bias and prejudice. The defendant further stated, in the application, that the knowledge of said judge's bias and prejudice against him, upon which the application was based, first came to him during the hearing upon his second plea in abatement. The application was supported by the affidavits of defendant and two reputable citizens, not of kin to nor counsel for defendant, and, in each of these affidavits, it was stated that the defendant would not have a fair trial before said judge because of his bias and...