State v. Newsum

• Decision Date: 18 June 1895
• Citation: 129 Mo. 154,31 S.W. 605
• Parties: STATE v. NEWSUM.
• Court: Missouri Supreme Court

31 S.W. 605

129 Mo. 154

STATE v. NEWSUM.

Supreme Court of Missouri, Division No. 2.

June 18, 1895.

DISQUALIFICATION OF JUDGE — CALLING IN JUDGE FROM OTHER CIRCUIT — RECITALS IN RECORD — CONTINUANCE — ABSENT WITNESSES — SURPRISE.

1. The court record need not show that the judge, in calling in a judge from another circuit, as provided by Rev. St. 1889, § 4178, was justified in so doing by the acceptance of the conditions prescribed by the statute, this being presumed.

2. Where, on a trial for murder, the state's witness testified to a declaration made by defendant prior to the murder, in the presence of two others, to the effect that he had "a notion to kill" deceased, it was error to refuse to grant a continuance to enable defendant to secure the attendance of the other two to contradict the state's witness, it appearing that the testimony was a surprise to defendant, that the absent witnesses were immediately subpoenaed, and that the trial was finished in one day.

Appeal from circuit court, Cape Girardeau county; D. W. Shackelford, Judge.

Frank Newsum was convicted of murder in the first degree, and appeals. Reversed.

Chas. P. Johnson, A. C. Clover, and H. C. O'Brien, for appellant. R. F. Walker, Atty. Gen., for the State.

BURGESS, J.

From a conviction of murder of the first degree in shooting to death with a revolving pistol one William S. Gray, defendant appealed. The murder is charged to have been committed on the night of November 12, 1892, in a saloon in New Madrid, New Madrid county, Mo. The indictment was preferred by the grand jury of that county, and on application of defendant the venue was changed to Cape Girardeau county. At the January term, 1894, of the circuit court of the last-named county, defendant was arraigned, and, upon refusal to plead, by direction of the court, a plea of not guilty was entered of record for him. Thereafter, on the 27th day of January, 1894, defendant filed a petition and affidavit charging prejudice, and disqualifying the presiding judge of that circuit, the Honorable H. C. Riley, from presiding at the trial of the cause. This petition was taken under advisement until the May term of said court next following, to wit, May, 1894. At the May term of said court, 1894, and on the 9th day of that month, Hon. Dorsey W. Shackelford, judge of the Fourteenth judicial circuit, having consented to hold the May term of said court, and try the cause, by order of record it was set for trial on the 25th day of June, 1894, and the petition denied. On the 26th day of June, before Judge Riley, a motion of protest was filed against Judge Shackelford, because it did not affirmatively appear that he had been notified and requested to try the cause, and, evidence having been heard in support of said motion, there was spread upon the records of the court a recital that, Judge H. C. Riley having heretofore set the cause down for trial for June 25, 1894, and having notified and requested Judge Shackelford to appear and hold this court at the time appointed for the trial of said cause, and the said Judge Shackelford now appearing in obedience to said notification and request, Judge Riley vacates; whereupon said motion of protest was overruled. On the 27th day of June the motion of protest was renewed before Judge Shackelford, and again overruled. A motion for a continuance was then made by defendant because of the absence of witnesses Louis McNorman and Richard Eckhard, and denied.

Defendant's first contention is that the action of the Honorable Henry C. Riley in requesting the Honorable D. W. Shackelford, judge of the Fourteenth judicial circuit, to preside at the trial of the cause, was without authority of law, conferred no jurisdiction upon the latter, and that all proceedings by him are null and void. Section 4174, Rev. St. 1889, provides that: "When any indictment or criminal prosecution shall be pending in any circuit or criminal court, the judge of said court shall be incompetent to hear and try said cause * * * when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or of counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial, or will not impartially decide his application for a change of venue on account of the prejudice of the inhabitants of the county or circuit." The section next following provides that: "Whenever in any cause, the defendant shall make application by petition, under the oath and supported by the affidavit of two or more reputable persons * * * for a change of venue for any of the reasons stated in the next preceding section, it shall be lawful for the judge to hear such application, and immediately thereafter, by an order of record, to empower the members of the bar present, to the number of three or more duly enrolled in said court and licensed attorneys of this state, and not of counsel in the case, to proceed to the election of a special judge for the trial of the particular cause pending, or to decide defendant's application for a change of the venue, such election to be held by the clerk," etc. By section 4178, Rev. St., it is provided that: "If in any case the judge shall be incompetent to sit for any of the causes mentioned in section 4174, and no suitable person to try the case will serve when elected as special judge, or if, in the opinion of the judge of said court, no competent or suitable person can or will be elected as such special judge, he need not order such election, but may, in either case, set the cause down for trial on some day of the...