State v. Thompson, 55825
| Decision Date | 08 November 1971 |
| Docket Number | No. 55825,No. 1,55825,1 |
| Citation | 472 S.W.2d 351 |
| Parties | STATE of Missouri, Respondent, v. Ervin C. THOMPSON, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
Ronald J. Fuller, Rolla, for appellant.
HOUSER, Commissioner.
Ervin C. Thompson has appealed from a judgment of conviction entered upon a jury verdict finding him guilty of uttering a forged instrument and assessing punishment at confinement in the county jail for 6 months and a fine of $250.
Appellant's first point challenges the jurisdiction of the circuit court on the ground that in compliance with Criminal Rule 30.12 V.A.M.R. accused filed an affidavit to disqualify the regular judge out the judge overruled the affidavit and proceeded to try the case. The rule provides that The case was set for trial on March 25. On Friday, March 20, at about 1 o'clock p.m. counsel for accused filed a 'Notice of Application for Disqualification of Regular Judge' and an affidavit. A copy of the notice, posted by regular mail, was received by the prosecuting attorney on Monday, March 23.
Criminal Rule 30.12 contemplates giving notice a reasonable length of time before filing the affidavit and requires that the affidavit be filed at least five days before the day the case is set for trial. Accused failed to observe both requirements. Notice was not given before the filing of the affidavit and the affidavit was filed only four days before trial date. The notice and affidavit not having been timely filed the affidavit did not automatically disqualify the trial judge. State v. Crow, Mo.Sup., 388 S.W.2d 817, 822(13).
Appellant urges that in overruling the affidavit the trial judge did not exercise sound judicial discretion. On the day the case was first set for trial (March 10) the State announced ready for trial but accused, appearing with his counsel, was not ready and the court accommodated accused by resetting the case for trial on March 25. On March 24 the prosecuting attorney filed a motion challenging the motion to disqualify the regular judge, in which he requested that accused's motion be overruled and denied by reason of the untimely filing of the affidavit and failure to give reasonable prior notice of the filing under the rule. The prosecuting attorney alleged that the untimely filing of the affidavit and untimely notice constituted a delaying tactic, making it 'virtually impossible' to call in a special judge on the day the case was set for trial. On the same day, March 24, the court heard arguments by counsel on accused's motion to disqualify and the prosecutor's counter motion, during the course of which it was conceded that no notice preceded the filing of the affidavit to disqualify. Under the circumstances the motion for disqualification not having been timely filed and not having been made on reasonable notice to the prosecuting attorney as contemplated by the rule there was no abuse of discretion in denying the motion, State v. Shaw, Mo.Sup., 357 S.W.2d 894, 896(2); State v. Wilkinson, Mo.Sup., 423 S.W.2d 693, 699(7), or in not entering an order of disqualification on the court's own motion.
Appellant's second point is that the court erred in overruling his challenge for cause directed at seven jurors on the ground that they were not selected according to law and were ineligible to serve as jurors in the case; that their inclusion on the jury deprived him of his right to trial by a lawfully selected jury. The grounds of challenge were that some of the jurors were selected by the jury commission as alternates rather than as regular jurors but that alternate jurors may not serve when regular jurors are present; that alternate jurors were permitted to seve when there were no regular selected jurors from their township who had been excused or had failed to attend, in violation of § 494.260, V.A.M.S.; that there was no effort to summon alternate...
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State v. Holt
...by failure to strictly observe these statutory provisions" in alleging error on the part of the circuit judge. State v. Thompson, 472 S.W.2d 351, 353-54 (Mo.1971). Appellant has not shown that the circuit judge failed to comply with the statute, let alone that such failure resulted in preju......
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State v. Adams
...with statutory provisions be inferable from the circumstances.' The Ward position was recently reaffirmed in State v. Thompson, 472 S.W.2d 351, 353, 354 (Mo.1971): 'These sections have uniformly been construed as merely directory and not mandatory, and appellant has failed to show that he h......
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State v. Weekley, 62156
...on its own facts. State v. McClinton, 418 S.W.2d 55 (Mo. banc 1967). We find no abuse of discretion in this case, State v. Thompson, 472 S.W.2d 351 (Mo.1971), and for that reason no mistrial was justified under the Appellant's final point is that the trial court abused its discretion in adm......
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State ex rel. Mountjoy v. Bonacker, 17832
...court said, "Criminal Rule 30.12 contemplates giving notice a reasonable length of time before filing the affidavit...." State v. Thompson, 472 S.W.2d 351, 353 (Mo.1971) (emphasis added). Not only is it clear from the 1956 amendment to prior Rule 30.12 and from Thompson that the supreme cou......
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Section 10.75 Harmless Error
.... . . .” In discretionary matters, the appellant shoulders the burden of showing that discretion was clearly abused. State v. Thompson, 472 S.W.2d 351 (Mo. 1971); State v. Ball, 529 S.W.2d 901 (Mo. App. E.D. 1975). In other areas where it is said that the trial court has great discretion, f......
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Section 29.19 Abuse of the Trial Court’s Discretion
...appellant. State v. Ball, 529 S.W.2d 901 (Mo. App. E.D. 1975); State v. Williams, 492 S.W.2d 1 (Mo. App. W.D. 1973); State v. Thompson, 472 S.W.2d 351 (Mo. 1971). In a few areas, such as the granting of a continuance, the trial court has great discretion, and the decision will not be distur......