State v. Neider

• Decision Date: 06 February 1888
• Citation: 6 S.W. 708,94 Mo. 79
• Parties: The State v. Neiderer, Appellant
• Court: Missouri Supreme Court

6 S.W. 708

94 Mo. 79

The State v. Neiderer, Appellant

Supreme Court of Missouri

February 6, 1888

Appeal from Butler Circuit Court. -- George N. Boughton, Esq. Special Judge.

Reversed and remanded.

Dinning & Byrns for appellant.

(1) The special judge had no power to order a grand jury to investigate the defendant. (2) The regular judge of the court would have had no authority to order a special grand jury. R S., sec. 1879. (3) The court erred in not setting aside the verdict, because of the participation of the deputy sheriff in the deliberations of the jury. R. S., sec. 1910; McDaniels v. McDaniels, 40 Vt. 363; Perkins v Knight, 4 N.H. 474; Commonwealth v. Roby, 12 Pick. 496; Graham & Waterman on New Trials, 309; Hare v. State, 4 How. [Miss.] 187; March v. State, 44 Tex. 83; Kennedy v. The People, 44 Ill. 283; Horne v. State, 37 Ga. 80; Dempsey v. The People, 47 Ill. 323. (4) The court erred in refusing defendant time in which to prepare his application for a change of venue, also his application for a continuance, and forcing him into trial in a new case, which the court was not elected to institute or try. State v. Berkley, 92 Mo. 41. (5) The court erred in allowing the state to prove, at the trial, a separate and distinct difficulty between the defendant and one Dalton. State v. Thompson, 30 La. 600; State v. Greenwade, 72 Mo. 298; State v. Benton, 15 N.H. 169; McIntyre v. State, 10 Ind. 26; Smith v. State, 10 Ind. 106; State v. Fireline, 19 Mo. 380; State v. Reavis, 70 Mo. 417. (6) The court erred in allowing the state to prove threats pretended to be made by the defendant against one of the witnesses, to the effect that he had a notion to, or ought to, cut the witness' throat. State v. Freeman, 3 Mo.App. 590; Boswell v. State, 35 Ind. 460. (7) The court erred in refusing to set aside the verdict because of the separation of the jury. (8) The court erred in allowing witnesses to testify to conditional threats against Johnston.

B. G. Boone, Attorney General, for the state.

Norton, C. J. Sherwood, J., absent.

OPINION

Norton, C. J.

Defendant was indicted in the Butler county circuit court, at its May term, 1885, for an assault with intent to kill one M. A. Johnston. The judge of said court, having been of counsel, ordered an election of a special judge to try the case, which the clerk thereupon held, and which resulted in a tie vote between two of the attorneys voted for, whereupon the clerk cast his vote for George N. Boughton, one of the two attorneys, for whom the tie vote had been cast, and declared said Boughton elected special judge to try the cause. The defendant objected to said Boughton qualifying as special judge on the ground that the clerk had no right to vote. This objection was overruled and constitutes the first ground of alleged error. The objection was properly overruled, as by section 1878, Revised Statutes, 1879, it is expressly provided that if, in the election of a special judge, there is a tie, the clerk shall "give the casting vote."

The defendant then presented an application for change of venue, based upon the allegation that the special judge was prejudiced, and that the prosecuting attorney and witnesses had an undue influence over him. The action of the court in overruling the application is objected to as error. The change of venue was properly denied, if for no other reason than that defendant's application was not supported by the affidavit of two or more reputable persons not of kin to defendant, as required by section 1878, Revised Statutes, 1879.

The defendant presented an application for continuance on the ground that material witnesses, who had been subpoenaed, were not in attendance. The application fully set out what defendant expected to prove by the absent witnesses, and also such facts as to authorize a continuance under section 1884 Revised Statutes, 1879. The prosecuting attorney having consented that on the trial the facts set out in the application as the facts which defendant expected to prove by the absent witnesses should be taken as and for the testimony of such witnesses, the court thereupon overruled the application and ordered the trial to be proceeded with, and in so holding committed reversible error, under the ruling of this court in the case of State v. Berkley, 92 Mo....