State v. Thompson

Citation141 Mo. 408,42 S.W. 949
PartiesSTATE v. THOMPSON.
Decision Date16 November 1897
CourtUnited States State Supreme Court of Missouri

Barclay, C. J., and Sherwood, J., dissenting.

In banc. Appeal from St. Louis criminal court; Thomas B. Harvey, Judge.

George Thompson was convicted of murder in the first degree, and appealed. Affirmed in division, and transferred to court in banc. Affirmed.

The following is the opinion in division:

GANTT, P. J.

At the November term, 1894, of the St. Louis criminal court, the defendant was indicted for the murder, in the first degree, of Joseph M. Cunningham, the sexton of St. Peter's Episcopal Church in the city of St. Louis. He was arraigned, tried, and convicted of that crime, and appealed to this court. The judgment of the criminal court was reversed February 4, 1896. He was again tried and convicted on May 29, 1896. After the usual motions for new trial and in arrest, the cause was again appealed to this court. The opinion of this court on the previous hearing is reported in 132 Mo. 301. The evidence on this last trial was substantially the same as on the first. Whatever changes occurred will be noted, if necessary, in the opinion of the court.

At the time the indictment was found, and of the first trial of the case, the laws of this state only made provision for one judge for the St. Louis criminal court. By an act of the general assembly, approved by the governor, March 26, 1895, the said criminal court was divided into two divisions, and provision made for an additional judge for the second division thereof; said act conferring upon each division of said court all the powers and jurisdiction theretofore had and exercised by the said court. By this act, Judge Henry L. Edmunds, the then incumbent, remained judge of division No. 1 of said court, and Hon. Thomas B. Harvey was appointed judge of the other division, and duly qualified as such. Upon the remanding of this cause it was again docketed in Judge Edmunds' division, and was set for trial March 9, 1896. On that day the defendant filed his application for a change of venue, verified by himself and two compurgators, as required by statute. In his application he alleged that Judge Edmunds would not give him a fair and impartial trial, and would not fairly and impartially pass upon his said application for a change of venue, and that the inhabitants of the city of St. Louis and the county of St. Louis were so prejudiced against him that he could not obtain a fair and impartial trial. Judge Edmunds sustained the application so far as it disqualified him from trying the case, and transferred the cause to Judge Harvey's division; to which transfer defendant objected, and demanded the election of a special judge. The cause having been transferred, on March 30, 1896, defendant filed his plea to the jurisdiction of said division of the court, which plea was overruled, and defendant excepted. Defendant then filed affidavits in support of his application for a change of venue, and again objected to the jurisdiction of Judge Harvey on the ground that the act of 1895 creating said division was ex post facto, was unconstitutional and void, which objection was again overruled, and exceptions taken and saved. Thereupon Judge Harvey, of division No. 2 of said St. Louis criminal court, heard the evidence for and against said change of venue, and denied the same, and exception was duly saved. On April 6th the defendant filed an application for continuance on the ground of an absent witness, one G. M. Lewis, whom defendant believed resided in St. Louis or Denver, Colo.; that he believed he could obtain the testimony of said witness in 60 days; that more than a week prior to April 6th he had issued a subpoena for said Lewis, and another on April 4th, both of which were returned "Not found." This application was overruled, and defendant excepted. Upon the application of the state, the cause was continued to the next term on account of an absent witness, and the cause set down for May 25, 1896, on which last-mentioned day both sides announced "Ready for trial," and the trial proceeded, resulting in a verdict of guilty. Having already passed upon the sufficiency of the indictment and arraignment on the former appeal, it is not necessary to advert to those subjects again.

1. The act of March 26, 1895, creating two divisions of the St. Louis criminal court of St. Louis, giving to each the same jurisdiction which was possessed and exercised by that court prior to that time, and thereby simply increasing the efficiency of said court for the disposition of the rapidly accumulating business therein, was clearly within the powers of the legislature. The state has no higher duty than to furnish courts in which public prosecutions may be heard and speedily terminated. The abolition of courts which have proved to be inefficient, and the creation of others, leaving unimpaired all the guaranties of the state and federal constitutions, are in no proper sense ex post facto laws. Cooley, Const. Lim. (5th Ed.) 329; State v. Jackson, 105 Mo. 196, 15 S. W. 333, and 16 S. W. 829; State v. Sullivan, 14 Rich. Law, 281; Wales v. Belcher, 3 Pick. (Mass.) 508; Com. v. Phillips, 11 Pick. (Mass.) 28; State v. Moore, 15 Rich. Law, 57.

2. It is objected that Judge Edmunds erred in refusing to call in a judge of another circuit to decide the application for change of venue, and in transferring the case to Judge Harvey's division of the court. Counsel's attention had probably not been called to the amendment of section 4174, Rev. St. 1889, by the act of March 18, 1895 (Acts 1895, p. 163, § 2). By this amendment so much of section 4174, as it stood prior thereto, which required the calling in of another judge to decide an application for change of venue, was repealed; so that Judge Edmunds only had for his consideration an application for change of venue from his court on account of his alleged prejudice. By section 5 of the act of March 26, 1895, he was required to transfer the case to Judge Harvey's division, and he rightly so ordered. No constitutional question was involved in his action in so doing. It was a mere matter of procedure, which it was the duty and right of the legislature to prescribe for the disposition of such cases, and was in no sense an ex post facto law.

3. Neither was there such error in the refusal of Judge Harvey to grant a change of venue as calls for review by this court. He heard the witnesses, and found as a fact that there was no such prejudice on the part of the inhabitants of St. Louis as would prevent a fair and impartial trial of the defendant, and that finding this court will not disturb, in the absence of a showing of abuse of discretion. No doubt exists of the power of the state to prescribe the terms and conditions upon which changes of venue may be granted. There is no constitutional right to such a change. The state very wisely requires the prosecution to be had in the county in which the offense is committed unless the court is satisfied by the evidence that a fair trial cannot be had therein.

4. There was little merit in the application for continuance. No diligence had been shown to obtain the evidence of the witness, and ample time intervened to find him in the 50 days which intervened after the court denied the motion and before the date fixed upon for the trial, if such a witness really was in existence....

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35 cases
  • State v. Barrington
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    ... ... The defendant's right to have his case removed from the county and circuit in which it was pending is purely statutory. State v. Lanahan, 144 Mo. 31, 45 S. W. 1090; State v. Thompson, 141 Mo. 408, 42 S. W. 949; State v. Sanders, 106 Mo. 188, 17 S. W. 223; State ex rel. v. Wofford, 119 Mo. 408, 24 S. W. 1009. It is made manifest from the disclosures of the record in this cause that the right of the defendant to a change of venue upon the facts alleged were most seriously and ... ...
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