State v. De Shon

• Decision Date: 23 February 1934
• Citation: 68 S.W.2d 805,334 Mo. 862
• Parties: The State v. Elliot DeShon, Appellant
• Court: Missouri Supreme Court

68 S.W.2d 805

334 Mo. 862

The State v. Elliot DeShon, Appellant

Supreme Court of Missouri

February 23, 1934

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Affirmed.

Jno. E. Heffley, Hobson Hoar and Wm. Linn for appellant.

Roy McKittrick, Attorney-General, and Olliver W Nolen, Assistant Attorney-General, for respondent.

(1) Points alleged in paragraphs 1 and 2 of motion for new trial are too general and indefinite to be considered by this court on appeal. There was substantial evidence to support the verdict. State v. Maness, 19 S.W.2d 629; Sec. 3735 R. S. 1929; State v. Francis, 52 S.W.2d 354; State v. Parsons, 285 S.W. 413; State v. Caviness, 33 S.W.2d 943. (2) The trial court had jurisdiction of the cause. Sec. 3648, R. S. 1929; State v. Wagner, 311 Mo. 405; State v. Messino, 325 Mo. 760. (3) The witnesses testifying to the bad reputation of appellant for peace, quietude and morality were shown to have the proper qualifications. State v. Scott, 58 S.W.2d 280; 8 R. C. L. 212; 10 R. C. L. 954. (4) There was no inconsistency or conflict in the giving of instructions 5 and 7. All of the instructions properly declared the law. State v. Deviney, 278 S.W. 729; State v. Sturrs, 51 S.W.2d 46; State v. Friedman, 313 Mo. 94; State v. Albritton and Taylor, 328 Mo. 366. (5) The trial judge properly refused to follow appellant's counsel's suggestion to ascertain how the jury stood with regard to the punishment. State v. Hubbs, 294 Mo. 231; State v. Alexander, 66 Mo. 163.

OPINION

Tipton, J.

On the 29th day of April, 1932, the Prosecuting Attorney of Buchanan County, Missouri, filed in the circuit court of that county an information charging the appellant with the crime of robbery by the use of a deadly and dangerous weapon.

Honorable L. A. Vories, Judge of Division Two, of that court, presided at the trial of this cause, and on the 3rd day of June, 1932, the jury found the defendant guilty, but were unable to agree as to the punishment, whereupon the court assessed the appellant's punishment at life imprisonment in the penitentiary. He has duly appealed to this court.

We believe the facts are fairly stated in the respondent's brief and we will adopt its statement of facts which are as follows:

"The evidence tended to show that on the 2nd day of February, 1932, Edna Robison, the prosecuting witness, lived near Industrial City, just north of the city limits of St. Joseph, Missouri, and was employed by the C. D. Smith Drug Company of St. Joseph. She was twenty-one years of age and unmarried. On the date in question she left her work at the usual time, and after partaking of the evening meal, went to a local hospital to visit a girl friend. On her way home, about 8:00 P. M., she was met by one Holly Fulton, who was driving an automobile. He offered to take her to her home and she got in the car. In proceeding to her home they took a rather circuitous route and when within about two and one-half blocks from her home, the car was halted by two men, one, identified as the defendant, coming to the side of the car in which Miss Robison was sitting, and the other, identified as George Stanton, going to the other side. At the point of a gun Holly Fulton was compelled to get out of the car and a small amount of change was taken from him. Fulton was then ordered back in the car, defendant got in the back seat, directed Fulton to drive to Carnegie School, about eight miles east of St. Joseph, on U.S. Highway No. 36. A car followed them on this journey.

When they arrived at the schoolhouse, Fulton was directed to drive on past the same a short distance and turn around, the other car having turned into the school yard. He was then ordered to turn around and go into the school yard also. On arriving at the schoolhouse there was considerable conversation between the parties. Stanton finally ordered Miss Robison to alight from the car and they proceeded several steps to the rear of the car. Miss Robison was then compelled to go inside the schoolhouse with Stanton, the defendant remaining in the car with Fulton. Stanton struck Miss Robison several times and attempted to compel her to submit to acts of degeneracy. She succeeded in repelling his attempts and he called for the defendant to come into the schoolhouse. Stanton then left the building and it appears from the evidence, locked Fulton in the toilet a short distance from the schoolhouse. Defendant then took a small diamond ring from Miss Robison of the value of thirty-seven dollars and fifty cents ($ 37.50) and solicited her to engage in sexual intercourse with him, telling her that he would give the ring back if she would yield. He then attempted to have intercourse with her by force, in which Miss Robison testified he was not successful."

The appellant's defense was an alibi. Other pertinent facts will be stated in the course of this opinion.

I. The appellant's first assignment of error is that the trial court did not have jurisdiction to try this case. The Circuit Court of Buchanan County is composed of three divisions. [Laws 1915, p. 257.] This case was originally pending in Division Three of that court. While pending in that division, the appellant filed an application for a change of venue, undertaking to disqualify the judge of Division Three, J. V. Gaddy; the judge of Division Two, L. A. Vories; and the judge of Division One, Sam Wilcox; on the grounds that each of the judges were biased and prejudiced. Judge Gaddy sustained the application as to himself, but overruled the application as to Judge Vories and Judge Wilcox, and transferred the case to the division presided over by Judge Vories. The appellant then filed a plea to the jurisdiction of Division Two of the circuit court because he had previously taken a change of venue, wherein he had attempted to disqualify all the judges of the Circuit Court of Buchanan County. This plea to the jurisdiction was overruled.

It is the appellant's contention that under Section 3648, Revised Statutes of Missouri, 1929, he had a right to disqualify all the judges of that circuit. The pertinent parts of this section are as follows:

"When any indictment or criminal prosecution shall be pending in any circuit court or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause in either of the following cases: . . . When the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial."

It is true that this section does not expressly limit the disqualification to only one judge; there is no section of the statute in criminal procedure which limits the applicant to only one change of venue from one trial judge, but we have consistently ruled that the applicant is entitled to only one change of venue.

In the case of State v. Greenwade, 72 Mo. 298, l. c. 304, in speaking of the right of the defendant to take more than one change of venue from the trial judge, we said:

"There is nothing in the statute on the subject, but we cannot suppose that the Legislature designed to allow a perpetual round of such motions and affidavits by which a trial could be indefinitely postponed, and, therefore, the application before Judge Wright, under Section 1877 was the end of such applications."

In the case of State v. Anderson, 9 S.W. 636, 96 Mo. 246, l. c. 247, we said:

"Here Judge Bland followed the case to the Laclede Circuit Court, as he was obliged to do by the express command of Section 1881, as amended by the Act of 1887 (Acts 1887, p. 168). This section, as amended, makes no provision for another change of venue because of prejudice or alleged prejudice of the judge. This matter is one of statutory regulation, and the ease with which such affidavits of prejudice are procured, on an adverse ruling of the court, renders it important to keep within the statute. There should be an end to such applications; and we hold now, as in the case last cited, that the application for a change of venue, because of prejudice of Judge Wallace, was the last of such motions."

In State v. Callaway, 55 S.W. 444, 154 Mo. 91, l. c. 96, we said:

"Relative to the change of venue applied for before Division No. 8 on the alleged ground of the prejudice of the judge, a change of venue having been applied for, for the same reason before Judge Klein, and granted, a second change was not allowable."

In State v. Messino, 325 Mo. 743, l. c. 761, 30 S.W.2d 750, we said:

"Defendant could not thus disqualify all of the judges of the circuit. [State v. Wagner (Mo.), 279 S.W. 23, and cases cited.] The Wagner case involved similar facts." (Italics ours.)

In State v. Wagner, 317 Mo. 391, 279 S.W. 23, l. c. 26, 27, we said:

"Counsel for defendant say that the application for a change of venue conformed to Section 3991, Revised Statutes 1919, which provides."

This section is the same as Section 3648, Revised Statutes 1919, and the opinion then quotes this section. The court further said:

"The application for change of venue filed before Judge Southern sought to disqualify Judge Porterfield, a judge before whom the case was not then pending, and the application filed before Judge Porterfield, was a second application for a change of venue for the alleged bias and prejudice of the trial judge. A defendant is allowed only one change of venue under this section of the statute. . . . While the statute does not explicitly provide that the defendant in a criminal case shall not have more than one change of venue for the alleged bias and prejudice of the trial judge, we have so construed the statute."

We therefore hold that the...