State v. Shipman

• Decision Date: 01 October 1887
• Parties: STATE v. SHIPMAN.
• Court: Missouri Supreme Court

6 S.W. 97

93 Mo. 147

STATE v. SHIPMAN.

Supreme Court of Missouri.

October Term, 1887.

1. CRIMINAL PRACTICE — CHANGE OF VENUE — APPLICATION.

Rev. St. Mo. § 1877, provides that, when defendant in a criminal prosecution shall make and file an application, supported by the affidavit of at least two reputable persons, etc., that the judge 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 judge shall be incompetent to hear and try such cause. Under Rev. St. Mo. § 1878, it shall be lawful for him to hear such application, and he shall immediately thereafter, by an order of record, empower the members of the bar present to proceed to the election of a special judge. On a trial for murder defendant made application for a change of venue, supported by two affidavits, on the ground that the present judge, who was a special judge, duly elected and qualified, on account of the illness of the regular judge, would not afford him a fair trial. Held, that the application was a substantial compliance with the law, and the judge was incompetent to hear and try said cause.

2. SAME — JUDGE — SPECIAL JUDGE.

At the February term, 1883, of the Newton, Missouri, circuit court, a special judge had been elected under Rev. St. Mo. 1879, §§ 1106, 1107, on account of the illness of the regular judge, to hold said term of the court, and, the latter's illness continuing, the special judge continued to act at an adjourned term of the court. On the trial of an indictment which by consent of counsel had been continued from the former to this term of court, defendant made application, under Rev. St. Mo. § 1877, for a change of venue, on the ground of the prejudice of the judge, which application was denied. Held, that a special judge, duly elected and qualified, is a judge within the meaning of Rev. St. Mo. § 1878, and equally incompetent as the regular judge in like circumstances.

Appeal from circuit court, Newton county; LEWIS M. LLOYD, Special Judge.

Defendant, C. C. Shipman, was indicted for murder in the first degree for shooting and killing one James H. Tiffee. The punishment, upon a plea of guilty of murder in the second degree, the former plea of not guilty having been withdrawn, was assessed at 99 years' imprisonment in the penitentiary. Defendant appeals. The facts are fully stated in the opinion.

Benton & Hubbard, for appellant. B. G. Boone, Atty. Gen., for the State.

RAY, J.

This case has an unusual and somewhat peculiar history. There is no brief on file for the defendant, and we learn from that of the attorney general, on behalf of the state, that the defendant is now in the penitentiary. It appears from the record that, on the first day of the February term of the Newton circuit court for the year 1883, there were present at the place of holding said court some 12 members of the bar of said court, besides the prosecuting attorney of said county, as well as the clerk of said court and the sheriff of said county. It also appears that the regular judge of said court, on account of ill health, was unable to appear and hold said term of court, and had not procured any other circuit judge to hold the same; whereupon, it also appears, Lewis M. Lloyd, duly qualified attorney of said court, was by the other attorneys of said court, then present, duly elected special judge to hold said term of said court then to begin; whereupon said Lloyd duly qualified as such judge, took the bench, and proceeded with the business of said term. Sections 1106, 1107, Rev. St. 1879. At this term of said court, so organized and held, the defendant, C. C. Shipman, was indicted for murder in the first degree, for shooting and killing one James H. Tiffee. To this indictment, the defendant, on being arraigned, pleaded not guilty. He then filed a motion and supplemental motion for a continuance, which were overruled by the court. He then filed an application and affidavit for a change of venue in said cause, on the ground "that the minds of the inhabitants of Newton county were so prejudiced against him that he could not have a fair and impartial trial in said county." Pending the hearing of this latter application, the prosecuting attorney and defendant's counsel, believing that the trial of said cause could not be completed before the approaching end of said term of said court, "agreed that the case be adjourned to the seventh day of May, 1883, to which time, it was then understood, the February term of said court would be adjourned, and that defendant would withdraw said application for change of venue. Whereupon defendant's attorney withdrew said application for change of venue, and also said application for a continuance; after which it was accordingly ordered by the court that the court adjourn until Monday, the seventh day of May next. At the meeting of said court on the seventh of May, 1883, according to said adjournment, the record further shows that said L. M. Lloyd, on account of the continued illness and inability of said circuit judge to hold said adjourned term of said court, was again in like manner duly elected and qualified, as special judge, to hold said adjourned term of said court, and thereupon took the bench, and proceeded with the business of said term. At the request of the defendant the court appointed George Hubbert and M. E. Benton as his counsel in this case. Afterwards, on the ninth of May, when the case was called for trial, the defendant answered that he was not ready for trial. The court then asked defendant and his counsel if defendant desired to make application for a continuance. In answer to which, defendant's counsel said: "We have no further or written application for continuance to make. The facts in this case are well known to prosecuting attorney and to court." Whereupon the court ordered the clerk to issue a venire for a jury of 40 men. Afterwards, on the same day, and while said venire was in the hands of the sheriff, and while the sheriff and his bailiffs were summoning said jury, defendant filed an objection and affidavit for change of venue as follows:

"State of Missouri vs. C. C. Shipman.

"Comes now the defendant, by his attorneys, who make application under their oaths, and supported by the affidavits herewith filed, for a change of venue of the cause from this to some other court of competent jurisdiction, for the reasons following, viz.: The present judge of this court, L. M. Lloyd, will not afford defendant a fair trial.

                       [Signed]                         "C. C. SHIPMAN, Defendant
                                                     "By BENTON & HUBBARD, Attorneys."
                

"State of Missouri, County of Newton — ss.: C. C. Shipman, being duly sworn, on his oath says that the special judge of circuit court of Newton county, now in session, and in which there is now pending an indictment against affiant for murder of one Tiffee, will not afford affiant a fair trial of

                the said cause.                             [Signed]      C. C. SHIPMAN
                

"Sworn to and subscribed before me this ninth day of May, A. D. 1883.

                     "JAMES E. HINTON, Clk
                          "By BARTON J. MORROW, Dept
                

"H. Q. Collins and W. M. White, being duly sworn, on their oaths say they are not of kin to or counsel for defendant, C. C. Shipman, and that the affidavit of the said defendant, above written, is true, to the best of affiant's knowledge

                and belief.                                  [Signed]        H. Q. COLLINS
                                                                            "W. M. WHITE.
                

"Sworn to and subscribed before me this ninth day of May, 1883.

                  [Signed]    "JAMES E. HINTON, Clerk.
                                  "By BARTON J. MORROW, Dep."
                

And afterwards, on same day, and while said venire was in the hands of the sheriff, and while said sheriff and his bailiffs were summoning said jury, the defendant filed his affidavit against the sheriff, to the effect: praying the court to issue no venire in the cause, nor permit the same to be executed by said sheriff or any of his bailiffs, on the ground that said sheriff and deputies were all prejudiced against him, and would not fairly or impartially summon a jury for the trial of defendant. And afterwards, on the tenth day of May, the defendant, without waiving or withdrawing his objections to the present presiding special judge of this court trying an issue or hearing any matter touching this case, challenges the array, and moves the court to quash the venire heretofore issued, and the return thereon, for the reason that, immediately upon the intimation of the court that the cause would proceed to trial, and that a venire would issue, he prepared and filed his affidavit that the judge of said court would not afford him a fair trial, and also an affidavit that the sheriff and deputies were prejudiced against defendant, and would not fairly or impartially summon said venire for the trial of defendant. Afterwards, on the twelfth of May, the prosecuting attorney files a counter-affidavit of H. Q. Collins, as to prejudice of the judge, to the effect that he did not intend by his former affidavit, and does not now intend thereby, to say that he believes that said special judge would not afford said defendant a fair trial; and that he thereby wanted to say that he believed said Shipman had such an opinion of the judge. And thereupon, on same day, def...