State v. Tucker

• Decision Date: 24 June 1933
• Docket Number: No. 32701.,32701.
• Parties: THE STATE v. WILLIAM (BILLY) TUCKER, Appellant.
• Court: Missouri Supreme Court

62 S.W.2d 453

THE STATE v. WILLIAM (BILLY) TUCKER, Appellant.

No. 32701.

Supreme Court of Missouri, Division Two.

June 24, 1933.

Appeal from Stoddard Circuit Court. — Hon. Frank Kelley, Judge.

AFFIRMED.

George Munger for appellant.

(1) The death of Judge Walker terminated the August Term and therefore Judge Kelley had no jurisdiction to try the case at the time it was tried. (2) The application and supporting affidavits for a change of venue from the county are sufficient and entitled the defendant to said change. State v. Wilcox, 44 S.W. (2d) 86. (3) Instruction A asked by defendant was improperly refused to defendant's prejudice. State v. Cantrell, 234 S.W. 801; State v. Palmer, 88 Mo. 568; State v. Harris, 232 Mo. 321; State v. Nelson, 231 S.W. 592. (4) If Instruction A was improperly drawn it at least notified the court of the law desired to be given to the jury by the court and therefore it became the duty of the court to properly frame such law and give it. (5) Instructions 4, 6 and 8, by their repetition of a vital point in the case, place undue stress upon such point and constitutes error prejudicial to defendant. State v. Hisaback, 132 Mo. 358; State v. Johnson, 234 S.W. 796; State v. Rutherford, 152 Mo. 133. (6) Instructions 4, 6 and 8 given for the State authorize a conviction on a finding of fact that is wholly unsupported by any evidence, fact or circumstance in proof. State v. Cruts, 231 S.W. 605; State v. Rongey, 231 S.W. 611; State v. Bailey, 57 Mo. 131; State v. Edwards, 203 Mo. 539. (7) At the conclusion of Instructions 4, 6 and 8 a clause is added which rendered them confusing, unintelligible and misleading to the prejudices of defendant. State v. Harris, 232 Mo. 321. (8) Instruction 11, by reason of its last clause, is illogical, misleading, confusing and, while partially supported by precedent, is contradictory in its effect on the basic principle governing the law of evidence in this, that it permits the jury to treat as of no effect material evidence in the case which they may believe to be true. Keeline v. Sealy, 257 Mo. 528; State v. Hayes, 262 S.W. 1037.

Stratton Shartel, Attorney-General, and James A. Finch, Jr., Assistant Attorney-General, for respondent.

(1) The information is not challenged. It was proper to allege burglary and larceny in one count. Sec. 4056, R.S. 1929; State v. Henderson, 284 S.W. 799; State v. Carey, 278 S.W. 719; State v. Tipton, 271 S.W. 55. The verdict is in proper form. State v. Henderson, supra; State v. Carey, supra. (2) Appellant's contention that the death of Judge Walker terminated the August Term of court and that Judge Kelley had no jurisdiction is without merit. Art. VI, Sec. 29, Const. of Missouri; 15 C.J. 883; Secs. 1942, 3651, R.S. 1929; Glover v. Albrecht, 173 S.W. 504; McKenzie v. State, 12 S.W. (2d) 578. (3) Defendant's application for change of venue was properly overruled because it does not appear that notice had been given to the prosecuting attorney. Sec. 3630, R.S. 1929; State v. Golden, 40 S.W. (2d) 1044; State v. Parker, 24 S.W. (2d) 1023; State v. Stough, 2 S.W. (2d) 767; State v. Beebe, 2 S.W. (2d) 712. The application was properly overruled because it was no presented to the court until after defendant had filed a plea in abatement which was overruled by the court. There was a lack of due diligence. State ex rel. Lafferty v. Landon, 289 S.W. 661; State v. Weber, 188 S.W. 122. (4) It is doubtful whether assignment 4 and 5 of appellant's motion for new trial are sufficiently definite to present anything for review. Furthermore, it was not error to refuse Instruction A. Under a number of cases, a defendant is entitled to an instruction which is the converse of instructions given on behalf of the State. However, in this case the State's instruction sufficiently state the converse, by concluding with, "If you do not find the facts to be so, then you will acquit the defendant of grand larceny," etc. State v. Hill, 44 S.W. (2d) 103; State v. Messino 30 S.W. (2d) 750; State v. Nasello, 30 S.W. (2d) 132; State v. Murray, 193 S.W. 832. Appellant's contention that Instruction 11 is erroneous is without merit. This court has held on several occasions that the giving of such an instruction is discretionary with the trial court, and an instruction in this form has been approved. State v. Richardson, 267 S.W. 841; State v. Hale, 156 Mo. 102; State v. Hicks, 92 Mo. 431; State v. Gonder, 289 S.W. 645.

FITZSIMMONS, C.

Appellant was charged with burglary and larceny by information filed in the Circuit Court of Stoddard County. Upon trial he was acquitted of the burglary charge, but he was found guilty of grand larceny and his punishment was fixed at four years' imprisonment in the State penitentiary. From the judgment and sentence he appealed.

I. Two preliminary assignments of error first should be examined. The initial error charged is the action of the trial court in overruling what appellant termed a motion in abatement of the trial. On August 17, 1931, appellant by proper proceedings disqualified Honorable W.S.C. Walker, then Judge of the Circuit Court of Stoddard County, and the court, Judge Walker presiding, designated Honorable Frank Kelley, Judge of the Twenty-eighth Judicial Circuit, as special judge to try the cause. Judge Walker died October 27, 1931, and when the cause came on for trial before Judge Kelley on November 3, 1931, appellant moved the court to abate and postpone immediate prosecution and hearing. The reasons given were, first, Judge Walker having died and his successor not having been appointed there was no regular judge of the Circuit Court of Stoddard County. Second, the death of the regular judge worked an adjournment of the August Term, and no special term had been called. In this connection it should be stated that on August 26, 1931, the court, Judge Walker presiding, set the cause for hearing before Judge Kelley on October 5, 1931. On the latter date, Judge Kelley being unable to attend, the court reset the case for trial on November 2, 1931. Judge Walker, as stated, died in the meantime. The third reason assigned for the postponement was that the right to try the cause inhered in the successor of Judge Walker and there was no necessity for calling in an outside judge. Appellant, in his brief, confesses his inability to find authority to support his position. But in his motion for a new trial he assigned as error the action of the court in overruling the motion. Hence the question must be examined.

[1] Section 3648 (4 Mo. Stat. Ann. p. 3202), 1929, states the grounds of incompetency of a circuit judge to try a criminal prosecution. The fourth cause of incompetency arises when the defendant shall make and file an affidavit, supported by the affidavit of two other persons, that the judge of the court in which the cause is pending will not afford him a fair trial. Appellant in the instant case disqualified Judge Walker under this statute. Section 3651 (4 Mo. Stat. Ann. p. 3206), 1929, provides that in case of disqualification for any of the causes stated in Section 3648, the judge of the court shall set the case down for trial on some day of the term or on some day as early as practicable in vacation, "and notify and request another circuit or criminal judge to try the case; and it shall be the duty of the judge so requested to appear and hold the court at the time appointed for the trial of said case; and he shall, during the trial of said case, possess all the powers and perform all the duties of the judge at a regular term of said court, and may adjourn the case from day to day, or to some other time, as the exigencies of the case may require, and may grant a change of venue in said case to the circuit court of another county in the same circuit, or to another circuit or criminal court; and when said cause shall be removed to the circuit court of another county in the same circuit, it shall be the duty of the judge so requested to appear and hold the court at the time set for the trial of said case in the circuit court of the county to which said case shall be removed."

In cases in which a party questioned the right of the circuit judge who presided at the trial to sign the bill of exceptions (State ex rel. v. Atchison, Topeka and Santa Fe Ry. Co., 270 Mo. 251, 192 S.W. 990), or to pass upon a motion for a new trial (Riggs v. Owen, 120 Mo. 176, 25 S.W. 356), because the trial judge no longer had jurisdiction in the county in which the cause had been tried, this court has held that the trial judge had such authority to act despite the fact that, by reason of changes in court circuit boundaries, the county in which the cause had been tried was no longer in his circuit. In the case of State v. Gordon, 196 Mo. 185, 95 S.W. 420, in the Circuit Court of St. Francois County, in the Twenty-seventh Judicial Circuit, the defendant by an affidavit of prejudice disqualified Judge Anthony the regular judge, and the latter called in Judge Davis of the Fifteenth Circuit as special judge. At the trial the defendant was found guilty on November 24, 1904. It was discovered, after Judge Anthony's term had expired and after Judge Killian, his successor, had taken office, that final judgment had not been entered upon the overruling of the motion for a new trial. Thereupon, on February 21, 1906, Judge Davis, the special judge in the case, entered judgment nunc pro tunc. This action was sustained. The principle of these cases is thus stated in State ex rel. v. Atchison, Topeka and Santa Fe Ry. Co., 270 Mo. 251, 192 S.W. 990, l.c. 993; "The judge of the circuit court is a judicial officer of the State whose powers, in whatever county they may be exercised, rest upon his election and qualification by his oath of office, and that whenever, in the performance of his official duty, he enters upon the trial of a case he acts within the limits of his official authority, which continues until the duty is performed or he goes out of...