State v. Stewart

• Decision Date: 14 April 1925
• Docket Number: No. 18683.,18683.
• Citation: 271 S.W. 875
• Parties: STATE v. STEWART.
• Court: Missouri Court of Appeals

271 S.W. 875

STATE v. STEWART.

No. 18683.

St. Louis Court of Appeals. Missouri.

April 14, 1925.

Rehearing Denied May 12, 1925.

Appeal from Circuit Court, Lincoln County; Allen W. Walker, Judge.

Cassander Stewart was convicted of possessing intoxicating liquor, and he appeals.' Affirmed.

Howell & Jackson and Creech & Penn, all of Troy, for appellant.

Grover C. Huston and Derwood E. Williams, both of Troy, for the State.

DAVIS, C.

By an indictment filed on April 15, 1922, by the grand jury of Lincoln county, defendant was charged in the first count with selling about one gallon of intoxicating liquor to Louis Hutchens, and by the second count with possessing about one gallon of intoxicating liquor. On the trial the first count was dismissed, the jury returning a verdict on the second count against defendant, and assessing his punishment at 30 days in the county jail and a $300 fine. From the judgment entered thereon, defendant appealed.

The state's evidence tends to show that on a certain Sunday in August, 1921, Louis Hutchens, the owner and operator of an automobile, with others seated therein, drove from Davis through Troy to Ethlyn to attend a baseball game. On their way to Ethlyn from Troy they came to the Withrow barn within the city limits of Troy. Near this barn the defendant was seen standing in the street near his car, which he had driven to the west side of the street. On approaching defendant, Louis Hutchens' car was stopped or slowed down, and defendant handed a jug to the occupants of the car driven by Louis Hutchens, or set the jug within. Witness Tommy Owens, for the state, testified as follows:

"Q. Did you taste or drink any of the contenth of this jug? A. I took one drink; yes, sir.

"Q. What did you drink?

"The Court: He may state, if he:knows, what it was. A. I would call it whisky.

"Q. Anybody else in the crowd drink it? A. Yes, sir.

"Q. Who? A. Oh, they was five boys—four boys.

"Q. What effect, if any, did the whisky have on you? A. None."

John Sweeney, for the state, testified:

"Q. What effect, if any, did the contents of that jug have on the parties in that car? A. It had none.

"Q. What was it; what did it taste like? A. Well, I don't know, sour; I don't know what it was; it just tasted like nothing; never tasted nothing like it.

"Q. Did it have any kick at all? A. No."

Witness Tommy Owens was permitted to testify, in substance, that it made several of them (the boys) drunk. Neither the jug nor the alleged whisky mentioned in the evidence was produced or identified at the trial, nor was there any evidence that it was ever gauged or analyzed.

One Baker, a federal prohibition agent, was permitted to testify in substance: That a liquid containing more than one-half of 1 per cent. of alcohol was intoxicating, and that the lowest per cent. by volume which distilled whisky contains is 25 per cent.

Witness Owens, being recalled, was permitted to testify that one drink of the liquor in the jug made Louis Hutchens drunk.

I. Defendant complains of the action of the trial court in calling in to try the case Hon. Allen W. Walker, of the Ninth judicial circuit, charging as follows:

"(A) The court was not authorized to grant a change of venue and call in a special judge to try the cause prior to the time defendant had filed his petition for same. (B) The law contemplates that defendant's petition for change of venue shall be heard and acted upon in term time, and that defendant has the right to consult and agree with the prosecuting' attorney upon a member of the bar to try the case to be approved by the court. (0) In the event defendant and the prosecuting attorney fail to agree on a member of the bar to try the case, the defendant has the right to have the clerk hold an election of a special judge to try the case, under section 2441, B. S. Mo. 1919, provided the requisite number of attorneys are present in court, and such were present when defendant requested that an election be held. (D) The jurisdiction of the regular judge to call the judge of another circuit to try a criminal cause depends on the refusal of a special judge to act after his election. (E) The special judge is not invested with jurisdiction in a cause, unless his appointment is in conformity to the manner prescribed by the statute."

The facts relative to the change of venue appear as follows: The cause was set for trial in the Lincoln county circuit court on March 12, 1923. On March 7, 1923, defendant served notice on the prosecuting attorney that he would, on March 12, 1923, file an application for a change of venue on account of the bias and prejudice of Hon. Edgar B. Woolfolk, judge of the Lincoln county circuit court, a copy of which application for change of venue was attached to said notice at the time it was served on the prosecuting attorney. On March 8, 1923, the prosecuting attorney, in the forenoon, appeared at the office of defendant's attorneys, and notified them orally that Hon. Edgar B. Woolfolk had called Hon. Allen W. Walker on the Ninth judicial circuit to try the case on March 12, 1923, and that Hon. Allen W. Walker would be present at 9 a. m. on said day to proceed with the trial, and that the prosecuting attorney then and there refused to agree with the defendant or his counsel !upon some member of the bar possessing the qualifications of a circuit judge to try the case. On the afternoon of March 8, 1923, the prosecuting attorney served notice in writing on defendant's attorney by copy, and filed the original, with the receipt of service thereon of defendant's attorneys, in the office of the clerk of the circuit court of Lincoln county. This notice provided, in substance, that the prosecuting attorney refused to agree with defendant to elect an attorney at law to try the cause, and further provided that Judge Woolfolk had notified Judge Walker to begin the trial on March 12, 1923, and that Judge Walker would be in the circuit court of Lincoln county at said time for the purpose of trying the above-entitled cause.

On March 12, 1923, defendant filed his application for a change of venue, in due substance and form, which the court sustained. On March 12, 1923, after the filing of the application for a change of venue by defendant, the following appears in the bill of exceptions to which defendant excepted:

"The application for change of venue is granted, and the prosecuting attorney having failed and refused to agree in writing or otherwise with the defendant and his attorney in the cause to elect some attorney at law, who possesses all of the qualifications of a circuit judge, as special judge, to sit in the trial of this case, and the prosecuting attorney of Lincoln county, Mo., failing and refusing to consent or to agree with the defendant or his attorneys to the election of a member of the bar of Lincoln county as special judge to try this cause, I, Edgar B. Woolfolk, judge of the circuit court of Lincoln county, Mo., call in Hon. Allen W. Walker, judge of the Ninth district of the state of Missouri, to sit in the trial of this cause, and the time of the cause is set for 10:30 a. m., o'clock this day."

The testimony tends to show that the cause was specially set for trial on March 12, 1923, and that a jury was brought back with the consent and acquiescence of all the parties to this suit. Defendant's attorneys stated that this was not done with the consent of defendant, and the court stated to Mr. Penn:

"I do not know whether you were in the case or not at the time, but I think Mr. Jackson will say that he agreed it might be set for trial on this day."

Thereupon defendant protested against the action of the court in prearranging and prejudging the defendant's application for a change of venue at a time when no such application or petition was on file in court, and because the court did not confer with defendant or his attorney. The court then stated: That he first took up the matter with Judge Wurdeman and Judge McElhinney, of St. Louis county, and Judge Gantt, of Audrain county, and Judge Hayes of Marion county, all circuit judges of the state of Missouri, and, each of them being unable to be preient, he conferred with Judge Walker, who consented to be present. The following appeared:

"Mr. Penn: Your honor, may I inquire if all that was not done out of court; the court was not in session?

"The Court: Yes; it was done before this day, with a view of getting this case, tried today; it was done out of court.

"Mr. Penn: In vacation of court?

"The Court: The jury coming in here to try the case; yes; in vacation."

The testimony further tends to show that seven members of the Lincoln county bar were present in court, the attorney for defendant then stating:

"Now, the prosecuting attorney having refused to elect, or to join with the attorneys for the defendant in the selection of an attorney to try this case, we as attorneys for defendant demand of the court the right to an election of a member of the bar of this court, naming seven attorneys, two of the members present not being interested in the trial of the case, not being witnesses for defendant nor for the State of Missouri,"

—which request the court denied and overruled, defendant saving his exceptions. The court admitted that more than five members of the bar were present.

The finding of the court with respect to a special judge is as follows:

"And the prosecuting attorney of Lincoln county, Mo., failing and refusing to consent or to agree with the defendant or his attorneys to the election of a member of the bar of Lincoln county as special judge to try this cause," etc.

We construe the finding of the court immediately preceding as referring to the special judge mentioned in section 3992, R. S. of Mo. 1919, for that is the only section, as far as we are able to find, in relation to the election of attorneys at law where the judge of the court is incompetent or incapacitated, that mentions in the body of the statute...