State v. Scott
| Decision Date | 11 September 1972 |
| Docket Number | No. 2,No. 56324,56324,2 |
| Citation | 484 S.W.2d 175 |
| Parties | STATE of Missouri, Respondent, v. Henry John SCOTT, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Melvin E. Carnahan, Rolla, Atty. for appellant.
Charged as a second offender, defendant was tried to a jury and found guilty of burglary in the second degree. The court assessed punishment at confinement for seven years. Sections 560.070, 556.280, RSMo 1969, V.A.M.S.
As appellant, defendant presents but one contention here, i.e., that the trial court erred in failing to grant his application for a change of venue which was based on the alleged prejudice of the inhabitants of the county against defendant.
The record reflects that the trial was scheduled for November 5, 1970; that defendant gave written notice to the prosecuting attorney of his intention to apply for a change of venue on October 28; that defendant filed his application with five supporting affidavits on October 29; and, that the trial court on October 30 entered an order providing, in part: '. . . overruled for failure to give reasonable previous Notice to Prosecuting Attorney.'
The entry as made appears to have been initiated solely by the trial court. The record indicates that the prosecuting attorney did not contend he had not had a 'reasonable' notice of the application, nor did he make any challenge whatever to the sufficiency of the application or attached affidavits.
The parties agree that Supreme Court Rule 30.04, V.A.M.R., is controlling, and specifically that portion, applicable to counties having less than 75,000 inhabitants, which provides: While Rule 30.04 supersedes Section 545.090, V.A.M.S., it is readily apparent that the only significant change was that provision calling for the application to be filed at least five days prior to date of trial. Such requirement stemmed from the widespread practice of using an application for change of venue on the day of trial as a means of obtaining an automatic continuance. The objective of that effort was not, however, the only factor which compelled the five day requirement. As is generally known, the basic reason for the rule was to avoid expenditures of public funds for calling juries and witnesses when they would not be used, as well as the fact that avoidance of last minute cancellations of trials would free the court and all of its related personnel for disposition of other pending legal matters. For other reasons why the rule has merit see Adams, J., 19 J.Mo.Bar 464.
Since Rule 30.04 became effective on March 1, 1964, there do not appear to have been any decisions written which specifically pertained to the adequacy of the prior notice to the prosecuting attorney. However, we mention two cases since that date. In State ex rel. Jakobe v. Billings, Mo., 421 S.W.2d 16, it was held that a 'substantial' compliance with rules relating to change of venue was sufficient. More in point is our recent holding in State ex rel. Johnson v. Green, Mo., 452 S.W.2d 814, 816, wherein it was said:
Necessarily, the parties rely on decisions wherein adequacy of the ...
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State v. Lafata, 42114
...of the jury for voir dire was met. To support his position that the notice was reasonable, defendant cites the cases of State v. Scott, 484 S.W.2d 175 (Mo.1972); State v. Bunton, 498 S.W.2d 67 (Mo.App.1973); and State ex rel. Oswald v. Buford, 518 S.W.2d 690 (Mo.App.1975). However, we have ......
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State ex rel. Oswald v. Buford, 9908
...to apply for a change of venue and for disqualification of the judge 'was more than that required by Rule 30.04' (State v. Scott, 484 S.W.2d 175, 177(2) (Mo.1972)), and was 'more than reasonable' under Rule 30.12. State v. Bunton, 498 S.W.2d 67, 69(2) When no issue is raised or determined a......
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State v. Bunton, 9461
...Consequently, of necessity we must rely upon authority presenting analogous circumstances. Such authority reposes in State v. Scott, 484 S.W.2d 175 (Mo.1972) which was concerned with the reasonableness of previous notice required to be given the prosecuting attorney under Rule 30.04 by a de......