State v. Webb

• Decision Date: 31 October 1881
• Citation: 74 Mo. 333
• Parties: THE STATE v. WEBB, Appellant.
• Court: Missouri Supreme Court

74 Mo. 333

THE STATE

v.WEBB, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Lawrence Circuit Court.--HON. JOS. CRAVENS, Judge.

AFFIRMED.

Smith & Krauthoff for appellant.

After the change of venue was granted by the Lawrence circuit court to Barton county, that court was divested of all jurisdiction which immediately attached to the circuit court of the latter county. State v. Hopper, 71 Mo. 425; Henderson v. Henderson, 55 Mo. 534; State v. Daniels, 66 Mo. 192; State v. Worrell, 25 Mo. 205; Frazier v. Fortenberry, 4 Ark. 162; Campbell v. Thompson, 4 Greene (Iowa) 415; Fisk v. Railroad Co., 41 How. Pr. 365; Brown v. Gilmor, 8 Md. 322; Calhoun v. State, 4 Humph. 477. The order vacating the change of venue is also void, because made in the defendant's absence and without notice to him. Laughlin v. Fairbanks, 8 Mo. 367; George v. Middough, 62 Mo. 549; Mulvey v. Carpenter, 78 Ill. 580; Keeney v. Lyon, 21 Iowa 277; Haley v. Williams, 8 Sm. & M. 487. A defendant cannot be required to plead with another indictment for the same offense pending against him. State v. Smith, 71 Mo. 45; State v. Patterson, 73 Mo. 695.

D. H. McIntyre, Attorney General, for the State.

HENRY, J.

At the special February term, 1870, of the Lawrence circuit court, the defendant was indicted for murder in the first degree, and at the May term, 1870, he applied for a change of venue, which was granted, and the cause ordered to Barton county. At the same term, defendant having escaped from custody by breaking jail, the order changing the venue was set aside. Subsequently, at the February term, 1877, of the Lawrence circuit court, the defendant was again indicted for the same offense, arraigned, pleaded to the jurisdiction of the court, and also moved to quash the indictment on the ground that a change of venue had been awarded, and that the indictment first found was still pending. The court found against defendant on the plea to the jurisdiction, and also overruled his motion to quash. Thereupon defendant pleaded guilty of murder in the second degree, and was sentenced to imprisonment in the penitentiary for life, and from this judgment has duly prosecuted his appeal.

That the court, at the same term at which an order granting a change of venue was made, could vacate the order, we entertain no doubt; and when it is said that, “after a change of venue granted, the case is no longer within the jurisdiction of the court awarding the same,” it is to be understood that this is so only while the order remains in force. The court certainly has the same power during the term at which it occurred to correct an error made by it in the matter of a change of venue, as with respect to any other order made in the progress of a cause. The only doubt on that branch of this case, arises from the fact that the order was vacated in the absence of the accused, and without any previous notice to him. We shall not determine the question in that respect, because we deem it unnecessary, as there are other controlling questions on which we entertain no...