State v. O'Rourke

• Decision Date: 28 February 1874
• Citation: State v. O'Rourke, 55 Mo. 440 (Mo. 1874)
• Parties: STATE OF MISSOURI, Respondent, v. BARTHOLOMEW O'ROURKE, Appellant.
• Court: Missouri Supreme Court

55 Mo. 440

STATE OF MISSOURI, Respondent,

v.BARTHOLOMEW O'ROURKE, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Andrew Circuit Court.

Harlan & Strongs, and Hedenburg, for Appellant.

I.Under a proper construction of the act of 1873(Sess. Acts, 1873, p. 56), appellant was not bound to prove anything to the court below.It is sufficient if it appears by the record that the court is prejudiced against the defendant.It is unreasonable to suppose that the legislature intended to provide that the issues should be made and tried, before and by the judge of the court, upon the evidence pro. and con., the issue being made on a charge of prejudice of the judge against a party whose right to life or liberty is at stake and on trial before him.This is an issue between the judge and the appellant.Can anything be more monstrous than the proposition that one of the parties to this issue shall sit to try and determine it in his own favor?

George T. Bryan for Respondent.

I.Section 19, of the General Statute of this State, as amended in 1873, requires the truth of the allegations in an application for a change of venue to be proved to the satisfaction of the court, by legal and competent evidence, and in this case there was no evidence given or offered by the defendant in support of the affidavit.

James P. Thomas, for Respondent.

I.The statute nowhere authorizes an application by a defendant for a change of venue on the ground of the judge's prejudice.Sections 19, p. 1097, and41, p. 1100, Wagn.Stat., are by the statute restricted to cases arising under §§ 16,17,18and23 of the statute.(Porter vs. State, 5 Mo., 538.)

II.If section 15, Wagn.Stat., 1097, is controlled by section 19, then the truth of the allegation in appellant's petition for a change of venue, mustbe proved to the satisfaction of the court by legal and competent evidence.(Sess. Acts 1873, p. 56.)

VORIES, Judge, delivered the opinion of the court.

This was a prosecution against the defendant upon an indictment for robbery which included a charge of grand larceny.No objection was made to the sufficiency of the indictment.The indictment was found at the April Term of the Andrew Circuit Court, in the year 1873.At the August Term of said court in the year 1873, the defendant was arraigned and pleaded not guilty to the indictment.No other notice of the defendant or the cause appears on the record at said term.It appears from the docket entries and bill of exceptions filed in the case, that at the December Term of the court which commenced on the second day of said month, the defendant again appeared in court; that on the first and second days of said term, said cause was informally passed on the docket for the reason that the defendant's witnesses were not all present; that on the fourth day of said term the cause was again called for trial, and the defendant not yet being ready for trial, the cause was by the agreement of the parties, and at the request of the defendant continued until the second Thursday of the term, which was the eleventh day of December, 1873, to enable the defendant to get his witnesses and prepare for trial; that afterwards, on the 9th day of December, the defendant filed his motion for a change of venue in said cause, with the acceptance or waiver of notice by the prosecuting attorney indorsed thereon, which motion and waiver of notice are as follows:

“State of Missouri, Plaintiff, against Bartholomew O'Rourke, Defendant.”“In the Circuit Court of Andrew county, comes now the defendant, and moves the court to grant him a change of venue in this case to the Circuit Court of some other county and circuit; and for reason of such petition, this defendant avers and charges that the judge of this court is prejudiced against said defendant.”Witness, W. Caldwell, “Bartholomew O'Rourke,”[his X mark.]

“State of Missouri, County of Andrew.”“Bartholomew O'Rourke, being duly sworn on his oath states, that he is the defendant in the above entitled cause; that he has subscribed the foregoing application for a change of venue in said cause.And this affiant states that the allegations in said application, that the judge of this court is prejudiced against him are true, wherefore defendant asks for a change of venue as above prayed.”This affidavit is subscribed and sworn to in the usual form.There is also indorsed on the said application the following: “I accept notice of this application and waive, further notice.December 9th, 1873, G. T. Bryan, Prosecuting Attorney.”

The application was also indorsed by the clerk of the court, that it was filed the 9th of December, 1873.

It appears that without any further notice having been taken of the application for a change of venue, the case was again called for trial on the 11th day of December, (the day before set for the trial of the case) when the Circuit Attorney announced that the State was ready for trial.The attorney for the defendant, then called the attention of the court to the application before filed by the defendant, for a change of the venue of the cause.The bill of exceptions shows that this was the first notice that the court had of the existence or nature of the application, the same having been filed without calling the attention of the court to its character or object, or to the waiver of notice on the part of the Circuit Attorney, whereupon the court believing that the application was unfounded and vexatious overruled the same and directed the defendant to answer whether he was ready for trial.”The defendant refused to answer and duly excepted to the action of the court in overruling his application for a change of venue.The defendant still objected to the court proceeding with the trial, insisting that it had no further jurisdiction over the matter.The court ordered the trial to proceed and a jury was impaneled in the usual way, before whom the case was tried and a verdict returned by the jury, finding the defendant guilty of grand larceny, and assessing his punishment to imprisonment in the penitentiary for the term of two years.

The defendant filed a motion for a new trial, setting out the usual causes stated in such motions, as well as the rulings of the court excepted to.The court overruled the motion and rendered a final judgment on the verdict.The defendant excepted and appealed to this court.

The only question presented for the consideration of this court or insisted on by the attorneys for the defendant, grows out of the action of the Circuit Court in overruling the defendant's application for a change of venue.No objection appears to have been made or exception taken to the giving or refusing instructions, and the exceptions taken to the action of the court in excluding evidence offered on the trial, are not insisted on here.It is insisted by the defendant in this court, that his application for a change of venue was in strict compliance with the 19th section of the 5th article of the act concerning “Practice in Criminal Cases”(Wagn. Stat., 1097), and that the court had no discretion in such cases; but that it was imperative on the court, when the petition or motion was filed, setting out the fact that the judge of the court was prejudiced in the cause,...