State v. Nave

• Decision Date: 13 December 1904
• Citation: 84 S.W. 1,185 Mo. 125
• Parties: THE STATE v. NAVE, Appellant
• Court: Missouri Supreme Court

84 S.W. 1

185 Mo. 125

THE STATE v. NAVE, Appellant

Supreme Court of Missouri, Second Division

December 13, 1904

Appeal from Howell Circuit Court. -- Hon. W. N. Evans, Judge.

Affirmed.

Harrison & Boone for appellant.

(1) The affidavit does not charge any offense in clear and distinct language and the information varies from it, and therefore the judgment should have been arrested. Laws 1901, p. 139; State v. Cornell, 45 Mo.App. 94; State v Whitaker, 75 Mo.App. 184; State v. White, 55 Mo.App. 356; State v. Boggess, 86 Mo.App. 632. (2) Hon. A. Burkhead, judge of the circuit court of Ozark county had no authority, after sustaining the application for a change of venue as to himself, to make any order relating to the case except to call a judge to try the case, or make the statutory provisions for a trial, and the order changing the venue out of the circuit to the Howell circuit court was a nullity and conferred no jurisdiction on that court. R. S 1899, secs. 2494 and 2595; Dawson v. Dawson, 29 Mo.App. 521; State v. Schaffer, 36 Mo.App. 589; Lacy v. Barrett, 75 Mo. 469; State v. Bulling, 100 Mo. 87; State v. Shipman, 93 Mo. 147; State v. Thomas, 32 Mo.App. 159; State v. Dusenberry, 112 Mo. 288; State ex rel. v. Lay, 128 Mo. 611. (3) The prosecuting attorney of Ozark county and the defendant's attorneys could not stipulate the case out of the Ozark circuit court, or out of the circuit. It required the order of a court or judge having jurisdiction to make orders in relation to the case. State v. Buck, 108 Mo. 622; Snitjer v. Downing, 80 Mo. 586; Ladd v. Forsee, 163 Mo. 506; State v. Brumley, 53 Mo.App. 126. (4) The court erred in permitting the State to take the testimony of witnesses during the absence of the defendant. R. S. 1899, secs. 2601, 2610; State v. Weeden, 133 Mo. 70; State v. Smith, 90 Mo. 37; State v. Hoffman, 78 Mo. 266. (5) The verdict of the jury in this case was contrary to the evidence and the result of prejudice and passion aroused by the admission of incompetent testimony as to other alleged offenses against the defendant, and therefore the court erred in refusing to set aside the verdict for the reason that the State had failed to make out a case. Kelly's Criminal Prac., sec. 392; State v. Musick, 71 Mo. 407; State v. Warren, 74 Mo. 83. (6) The court erred in giving instruction 8. The vice of this instruction is that it assumes the fact that there were unfavorable circumstances proven against the defendant, and this was a fact which the jury should have passed upon and should not have been assumed by the court. R. S. 1899, sec. 2639; State v. Hecox, 83 Mo. 553; State v. Young, 99 Mo. 666; State v. Smith, 53 Mo. 267; State v. Elkins, 63 Mo. 159; Kelly's Criminal Prac., sec. 390.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) There is ample evidence to support the verdict, if believed by the jury. There can be no question but that defendant, if the State's witnesses are to be believed, secured a gun from his neighbor and made the rounds that evening, during which time he committed the crime in question. While the evidence is circumstantial, yet it is plain and clear and admits of no other reasonable hypothesis than that of his guilt, when we consider all the facts and circumstances detailed by the various witnesses. (2) The seventh and eighth grounds for a new trial, as shown by the motion, cannot be raised in this court, for the reason that they do not prove themselves. Allegations therein contained must be supported by the record, as transmitted to this court, or if not, by affidavit. There is nothing to show that Mr. Livingson and Mr. Greene acted as counsel for the State, nor is there anything to show that defendant was absent from the court room during a portion of the time while the witness Siler was being examined. It is true there is an affidavit in support of this contention, but, doubtless, the trial court found, as a matter of fact, that the defendant was present at the time the witness testified. (3) Even though it should be considered under any circumstances that the evidence concerning the shooting of Frank Lantz and his father, Ike Lantz, was inadmissible in evidence, yet it cannot be taken advantage of now, as defendant did not object to the introduction of the testimony at the time.

FOX, J. Gantt, P. J., concurs; Burgess, J., absent.

OPINION

FOX, J.

At the October term, 1903, of the circuit court of Ozark county, the prosecuting attorney filed an information against the defendant, charging him with a felonious assault, with intent to kill and murder one J. G. Jenkins, on the 23rd day of July, 1902. The defendant asked for a change of venue on account of the bias and prejudice of the inhabitants of the counties of Ozark and Douglas, and also on account of the bias and prejudice of the judge of said court. The application was sustained and the cause transferred to the circuit court of Howell county, presided over by Hon. W. N. Evans, Judge.

On the 8th day of December, 1903, defendant was formally arraigned, whereupon he declined to plead, and the court ordered a plea of not guilty entered for him. He was put upon his trial and convicted as charged, and his punishment assessed at imprisonment in the penitentiary for a term of four years. Defendant, thereupon, on the 11th day of December, 1903, filed a motion for a new trial, which was overruled. Being also unsuccessful in his motion in arrest of judgment, an appeal was taken to this court.

The testimony in this cause, upon which the State relies to support the conviction, is purely circumstantial. It will be observed that the testimony in some of its features refers to the shooting of Ike Lantz and his son Frank, and they are frequently named in the testimony, and the assault upon them the same night that the prosecuting witness Jenkins was shot, is detailed with great particularity by the witnesses. This reference to the shooting of Lantz and his son, being in the same locality, was introduced as a circumstance tending to connect the defendant with the shooting of Jenkins. The court, by an appropriate instruction, confined the consideration of that testimony by the jury, within proper limits, and to the legitimate purposes for which it might legally be taken into consideration.

The circumstances detailed by the witnesses for the State, tended to show substantially the following state of facts:

"The defendant and Jerry Jenkins, the prosecuting witness, lived in Ozark county, Missouri. Ike Lantz and his son Frank Lantz lived in Marion county, Arkansas. There was some evidence of bad feeling existing between the defendant and Jenkins.

"On the afternoon of the 23rd of July, 1902, the defendant went to the home of a neighbor by the name of Andy Turnbo and secured his shot gun, and from there proceeded on horse-back down the road a short distance to Jenkins's home. He called Jenkins out of his house, but before Jenkins had an opportunity to see or inquire who it was, he fired several shots which took effect in Jenkins's arm. Defendant then proceeded down the road about a mile and a half into Arkansas, where he called at the home of Ike Lantz. Lantz's daughter answered the call and defendant told her that he desired to see her father. She returned to the house and told her father that the defendant, William Nave, wanted to see him. Lantz was in bed, but arose, put on his clothes, and went to the door and asked Nave what he wanted. Nave said, 'Nothing much,' and Lantz asked him to come in. Defendant then raised his gun and fired, several shots taking effect. Defendant then mounted the gray mare which he was riding and rode rapidly away. Lantz called his son Frank, and told him to go to a neighbor by the name of Hillhouse, a short distance away, and tell him to come over, that he was shot. Young Frank Lantz went as rapidly as he could to the neighbor's house, who was with his wife at the time in the barn-lot, milking. They had just finished milking when young Lantz came up and told them his father had been shot. Hillhouse and his wife were in the lead, going into the house, when a shot was fired, and young Frank Lantz fell, and from the effects of the wound died shortly afterwards.

"Several witnesses testify to seeing the defendant in that neighborhood that afternoon and several other witnesses testify to the fact that they had seen a man answering the description of defendant on a gray mare riding along the road between the respective houses in question."

Numerous witnesses were introduced by defendant. We have read in detail all the testimony of the witnesses, both for the State and the defendant, and it can serve no useful purpose to reproduce such testimony; it is sufficient to say that the testimony introduced by defendant tends strongly to establish his defense, an alibi. If the testimony of the witnesses introduced by defendant was believed by the jury, then it would clearly entitle him to an acquittal. The defendant testified in his own behalf, and his testimony flatly contradicts the circumstances shown by the State and clearly establishes that he was not present at the time of the assault upon Jenkins. For the purpose of discrediting the testimony of the defendant, it was shown that he had served a term in the penitentiary for burglary and larceny.

This is a sufficient statement of the tendency of the testimony in this cause. We shall further refer to it in the course of the opinion.

At the close of the testimony, the court instructed the jury, and the cause was submitted to them. It is not essential to burden this statement with the reproduction of all the instructions; those about which complaint is made will be given attention in the opinion. As before stated,...