State v. Tummons
| Decision Date | 20 December 1930 |
| Docket Number | 30561 |
| Citation | 34 S.W.2d 122 |
| Parties | STATE v. TUMMONS |
| Court | Missouri Supreme Court |
Stratton Shartel, Atty. Gen. (Otis Patterson, of Springfield of counsel), for the State.
Defendant was convicted in the circuit court of Polk County of the felonious sale of 'hooch, moonshine, corn whisky,' sentenced in accordance with the verdict of the jury to two years' imprisonment in the penitentiary, and he appeals.
The evidence offered by the state showed the following facts: On the evening of June 28, 1929, about 8:30 or 9 o'clock, Sam Burks and Charles Hutcheson went in an automobile to defendant's residence, situate a few miles from Bolivar in Polk county, for the purpose of buying some whisky from defendant. The sheriff, Roy Shipley, had provided Burks with money with which to make the purchase if defendant were disposed to sell. Shipley and a deputy, Evans, followed Burks and Hutcheson in another car, but stopped a short distance from defendant's home and waited while Burks and Hutcheson drove on to the house. On arriving at the house defendant was called out. Burks asked him if he had anything, to which defendant replied: 'Not right close.' Defendant told Burks and Hutcheson to wait at the barn. He 'went out across the woods' and in fifteen or twenty minutes returned with a pint bottle of whisky, which he sold to Burks, who paid him $ 1.50 therefor. Burks and Hutcheson each took a drink out of the bottle and then left, returning to the place where Shipley and Evans awaited them, whereupon the bottle with the remainder of the liquor was by Burks turned over to Shipley who kept it in his possession until the trial, where it was produced, identified, and introduced in evidence. It was proved that the liquor was moonshine corn whisky. The four men above mentioned were called as witnesses by the state.
Defendant testified denying the sale and called his wife, son, and three others who claimed to have been at his house that evening, the testimony of all of whom tended to contradict that of Burks and Hutcheson as to the sale.
Appellant, though represented at the trial by counsel of his own choosing, has filed no brief in this court.
I. The first assignment of error in the motion for new trial is the denial of defendant's application for change of venue from Polk county. His application charged that both the judge of that circuit court and the inhabitants of the county were biased and prejudiced against him. It was sustained as to the judge, and another circuit judge was called in to try the case. The application was overruled, however, as to the county, and it is of that ruling denying a change of venue from the county that complaint is made.
Polk county has fewer than 75,000 inhabitants, and the procedure for change of venue from the county is governed by section 3973, R. S. 1919, as amended and re-enacted in 1921 (Laws 1921, p. 206). In attempted compliance with that statute, defendant filed five supporting affidavits with his verified application. These supporting affidavits are identical except in the names of the respective affiants and the townships in which they reside. Omitting name, signature, and jurat, each affidavit is as follows: 'I, -- , being a credible, disinterested citizen residing in -- Township, Polk County, Missouri, having seen and heard read the application and affidavit of Matt Tummons for a change of venue and know the contents thereof, and verily believe the same to be true, state: that the minds of the inhabitants of Polk County, Missouri, are so biased and prejudiced against Matt Tummons, the defendant, and Honorable C. H. Skinker, the regular judge of the circuit court of Polk County, Missouri, is so biased and prejudiced against said defendant, Matt Tummons, that a fair and impartial trial of defendant's case can not be had in said county; that I do not reside in the same neighborhood with any of the other compurgators to said application for a change of venue and that I am not of kin to or counsel for defendant.'
We have held that, where supporting affidavits are relied upon for proof of the existence of bias and prejudice of the inhabitants of a county, such that defendant cannot have a fair trial therein, because of which a change of venue is sought, the affidavits must state facts from which the court can determine that issue, and that the statement of a mere legal conclusion is not sufficient. State v. Hancock, 320 Mo. 254, 7 S.W.2d 275; State v. Bradford, 314 Mo. 684, 285 S.W. 496. The supporting affidavits in this case stated only legal conclusions, and tested by the foregoing authorities were clearly insufficient. The application for change of venue from the county was properly denied.
II. Before pleading to the information in the circuit court defendant filed a plea in abatement, the sole ground therein alleged being that he had not been accorded a preliminary examination. In support of that plea he offered only the following evidence, to wit, the testimony of the circuit clerk that there were three informations against defendant then pending in that court, being cases numbered 31, 32, and 33 on the court docket. From the transcript certified to this court, we learn that this case was numbered 31 on the trial court's docket for that term. There was no further showing, not even a showing of what offenses were charged in the other two informations. From aught that appears in the record, defendant may have been given a preliminary hearing in each of the three cases. It was incumbent upon him to offer proof of the contention made in his plea in abatement. The allegation in said plea did not prove itself. State v. McKee, 212 Mo. 138, 110 S.W. 729. The proof offered amounted to nothing. Indeed, in the light of subsequent developments, that assignment in the motion for new trial appears unjustified. Defendant proved on cross-examination of a state's witness in the trial...
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