State v. Shaffer

• Citation: 253 Mo. 320,161 S.W. 805
• Parties: STATE v. SHAFFER.
• Decision Date: 09 December 1913
• Court: Missouri Supreme Court

161 S.W. 805

253 Mo. 320

STATE v. SHAFFER.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

1. CRIMINAL LAW (§ 134)—CHANGE OF VENUE — PROCEEDINGS ON MOTION — ADMISSION OF EVIDENCE.

On a motion to change the venue, in a prosecution for grand larceny by hog theft, on the ground of prejudice against accused, evidence that more than 20 years ago, when accused was only 5 or 6 years of age, his brother and three cousins were charged with a notorious murder in the county was properly excluded.

2. CRIMINAL LAW (§§ 121, 1150) — CHANGE OF VENUE—LOCAL PREJUDICE.

The granting of a change of venue for local prejudice against accused is within the sound discretion of the trial court, and its action will not be disturbed in absence of a palpable violation of such discretion.

3. CRIMINAL LAW (§ 121)—VENUE—MOTION FOR CHANGE—SUFFICIENCY OF EVIDENCE— LOCAL PREJUDICE.

Evidence on a motion for change of venue, in a prosecution for grand larceny, on the ground of local prejudice held not to show an abuse of discretion in denying the motion.

4. CRIMINAL LAW (§ 1049)—APPEAL—OBJECTIONS —PRESENTATION BELOW.

An objection that the elisor violated the order of the court in summoning the venire from the central part of the county instead of the southern part will not be considered on appeal, where no exception was saved to the order overruling the motion to quash the panel on that ground.

5. CRIMINAL LAW (§ 510) — TESTIMONY OF ACCOMPLICE—CORROBORATION.

A conviction may be had upon the uncorroborated testimony of an accomplice.

6. CRIMINAL LAW (§ 780)—EVIDENCE OF ACCOMPLICE — CORROBORATION BY CIRCUMSTANCES.

An instruction is correct, in a proper case, that an accomplice's testimony may be corroborated by the circumstances given in evidence.

7. CRIMINAL LAW (§ 829) — INSTRUCTIONS — REQUEST.

Even if otherwise proper, a requested instruction attempting to definitely define reasonable doubt was properly refused, where the court had already given instructions, at accused's request, sufficiently defining the nature of such reasonable doubt as would authorize an acquittal.

8. CRIMINAL LAW (§ 811) — INSTRUCTIONS— COMMENTS ON EVIDENCE.

A requested instruction, in a prosecution for hog theft, that, even if the jury found that the entrails of one of the hogs claimed to have been stolen was found in accused's icehouse, unless it found that they were placed there with accused's knowledge and consent, such fact was not evidence of guilt was properly refused as commenting upon a particular phase of the evidence.

9. CRIMINAL LAW (§ 1172)—APPEAL—HARMLESS ERROR—INSTRUCTIONS ON CREDIBILITY.

Instructions that, while both accused and his wife were competent witnesses for the defense, the jury might consider, as affecting their credibility, the interest which accused and his wife had in the result of the trial were not reversible error, though it would be better to omit such instructions.

10. LARCENY (§ 55)—SUFFICIENCY OF EVIDENCE.

Evidence in a prosecution for grand larceny for hog theft held to sustain a conviction.

Appeal from Circuit Court, Clark County; Samuel Davis, Judge.

Grover Shaffer was convicted of grand larceny, and appeals. Affirmed.

There was filed on the 21st day of March, 1912, in the circuit court of Clark county, an amended information charging defendant and one Guerdon Best with having, on the 8th day of February preceding, committed grand larceny, for that they had stolen certain hogs in said information described. Guerdon Best pleaded guilty on April 1, 1912, was duly sentenced to the penitentiary on such plea, and thereafter paroled pursuant to statute. The defendant, upon his trial, was found guilty, and had assessed against him as punishment, imprisonment in the penitentiary for a term of two years.

The appellant (whom we shall hereafter call the defendant) filed on the 1st day of April, 1912, which was the date upon which the circuit court of Clark county convened in regular term, his application for a change of venue on account of the prejudice of the inhabitants of Clark county against him. Thereafter and on the same day, defendant filed a second application for a change of venue on account of the alleged prejudice against him of Judge Stewart, the regular judge of the Clark county circuit court. The latter application, coming on to be heard first, was sustained, and thereupon Judge Stewart called in Judge Samuel Davis, judge of the Fifteenth judicial circuit, to try the case, and reset the same for trial at an adjourned term to be convened on Tuesday, April 23, 1912.

The case coming on for hearing before Judge Davis on the date last above mentioned, defendant refiled his application for a change of venue. This application, omitting caption and verification by defendant and his compurgators, all of which latter things are formal, is in the following form: "Now comes Grover Shaffer, one of the defendants in the above-entitled cause, and states that the minds of the inhabitants of said county of Clark are so prejudiced against him that he cannot have a fair trial in the above cause in said county, wherefore he asks that the venue of said cause be changed to the circuit court of some other county in this circuit, where such prejudice does not exist."

Upon a hearing had, defendant, to support the alleged prejudice which he averred existed against him, called, including himself, some 13 witnesses, residing, for the most part, in the neighborhood, or within two or three miles of the place where the alleged offense of the defendant was committed, and of whom at least three, if not more, were related to defendant, who swore to the existence of certain prejudice against him, which prejudice largely grew out, as was vaguely hinted in the record, of a murder and a trial therefor, in which murder a brother and certain cousins of defendant, as we are told in defendant's brief, had a part. This murder seems to have occurred more than 20 years before the instant case was tried, and at a time when defendant was only some four or five years of age.

There was offered, to combat the case thus made, some 17 or more witnesses for the state, coming for the most part from the central and southern part of Clark county, and coming from divers avocations and walks of life. These witnesses for the state testified practically with unanimity that they knew of no prejudice existing in their several neighborhoods against defendant, and had heard no prejudice expressed against him whatever. The court thereupon overruled the application for a change of venue, and defendant saved his exceptions.

After the trial jury of 12 men was chosen and sworn to try the case, defendant filed a motion to quash the panel for that, as it was averred in his said motion, the jurors had been selected from the central part of the county, the elisor who acted in this behalf having been, as it was averred, directed by the court to select them from the southern part of said Clark county. This motion was overruled, but defendant took no exceptions to the action of the court in this behalf, nor does the record show that any order was made by the court that the jurors be gotten from the southern part of the county.

The testimony offered by the state tended to show that defendant, who resided in the little village of Peaksville, in Sweet Home township, in said Clark county, was, at and prior to the date of the alleged theft of the hogs in question, contemplating engaging in the business of a butcher, and that to this end he had rented and had had partly fitted up a shop in the village of Revere, and that he had tentatively arranged with one Painter, who was a witness for the state, to have charge of this shop for him. The testimony of Guerdon Best, the accomplice of defendant, who, after his plea of guilty, sentence to the penitentiary, and parole, was offered as a witness by the state, tended to show that Best began working for the defendant on the 5th of February, and that defendant communicated to Best his intentions of setting up a butcher shop, and asked Best to go with him and get some hogs; that defendant and Best started at night, at about the hour of half past 10, and went along the public road a distance of a mile and a quarter from and in a direction northwest of defendant's residence to the premises of one Ben Best, who was the grandfather of the said Guerdon, and who is alleged in the information to have been the owner of the hogs stolen. Defendant and his accomplice Best drove seven hogs from Ben Best's premises back along the way in which they had come and to a point about a quarter of a mile from defendant's residence, when one of the hogs becoming unruly, objecting to going further, and showing a desire to return, defendant shot and killed it with a small 22 caliber rifle. Thereafter, defendant and Best proceeded with the remaining hogs to defendant's barn, returning shortly thereafter with a sled for the one they had killed. After placing the hog which was killed in the road upon the sled, straw was thrown over the blood and burned so as to destroy the blood signs which existed there in the road upon the snow. Thereafter they killed five of the remaining hogs in defendant's barn, took them to the kitchen, skinned them, removed the offal, cut them in halves or quarters, and hung them in the attic of defendant's residence upon nails driven in the rafters. On the night following, the entrails and skins of the hogs were taken by Best and the defendant to a small creek and thrown into said creek under a culvert. One of the hogs stolen, which was deemed at the time too small to kill, was subsequently on the following night, or morning, killed by Best and the defendant and skinned, and the skin and entrails were hidden by Best, at defendant's suggestion, in an icehouse, at a place subsequently pointed out by Best, and at a place where the same were afterwards found by the sheriff and others. Another witness, one Elmer Ritchey, an...