State v. Wetherford

Decision Date31 July 1857
Citation25 Mo. 439
PartiesTHE STATE, Plaintiff in Error, v. WETHERFORD, Defendant in Error.
CourtMissouri Supreme Court

1. Where two are jointly indicted, and one only applies for a change of venue, an order removing the cause will be effectual only as to the one so applying; if a recognizance be in such case entered into by both to appear in the court to which the cause is removed, it will be void as to the one not applying for a change of venue.

Error to Benton Circuit Court.

Henderson Wetherford and Clemsey Wetherford were jointly indicted in the Morgan Circuit Court, at the March term, 1852, for a felonious assault upon one Cline, with intent to kill. After several continuances, at the April term, 1854, Clemsey Wetherford failing to appear, a forfeiture of her recognizance was taken. At the October term, 1854, Henderson Wetherford filed the following petition for a change of venue.

“To the Honorable the Circuit Court within and for Morgan county, and State of Missouri: Your petitioner, Henderson Wetherford, would respectfully state that he believes the defendants cannot have a fair trial of this cause in this judicial circuit on account of the prejudice of the circuit judge, and that he only became satisfied of said prejudice since the calling of this case. Defendants, therefore, respectfully ask that said cause may be sent by change of venue to some judicial circuit where such prejudice does not exist. Henderson Wetherford makes oath, and says he believes the matters stated in the foregoing petition are true. [Signed] Henderson Wetherford.”

The court thereupon granted the prayer of the petition and made an order removing the cause to the Benton Circuit Court. Henderson Wetherford and Clemsey Wetherford both entered into a recognizance to appear in the Benton Circuit Court. Clemsey Wetherford failing to appear to answer to the indictment in the Benton Circuit Court, her recognizance was forfeited and a scire facias awarded. On the return day of the scire facias, Clemsey Wetherford appeared and filed a motion to set aside the forfeiture of the recognizance and dismiss the cause and all proceedings had in relation to Clemsey Wetherford, because the indictment was found in the county of Morgan, and there never was any change of venue taken to the Benton Circuit Court, because the Benton Circuit Court had no right to take such forfeiture; that said Clemsey was not bound to appear in the Benton Circuit Court by force or virtue of said recognizance; and that the court had no jurisdiction of the same. The motion was sustained, and the proceedings dismissed, and the defendant, with her securities, discharged.

The State brings the cause here by writ of error.

Ewing (attorney-general), for the State.

I. Although the petition for the change of venue was not signed or sworn to by defendant in error, yet it was made on behalf of herself and her co-defendant jointly, and the ground of application is by the terms of the petition made applicable to both. The petition alleges that defendants cannot have a fair trial,” and they, defendants,” ask the change of venue. The order of the court is, “that the prayer of the petition be granted.” The order is in accordance with the petition, and applies to both defendants. Both defendants entered into a recognizance in open court, which is entered of record, to appear in the Benton Circuit Court to answer the indictment against them. Although certain forms were not complied with by defendant, yet, having consented to the change of venue, waived her right to a trial by a jury of the vicinage, claimed the benefit of a trial elsewhere before a court having jurisdiction of the offense, and referred her cause to its decision, she cannot afterwards allege that such court has no jurisdiction. The constitutional right of trial by a jury of the vicinage is intended for the benefit and protection of the accused; yet when this is waived, as it was by defendant,...

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8 cases
  • State v. Ball
    • United States
    • Missouri Supreme Court
    • March 2, 1929
    ...as amended Laws 1921, p. 206, and 3974, 3990, 4035, R. S. 1919; State v. Witherspoon, 231 Mo. 706; Hutsing v. Maus, 36 Mo. 101; State v. Wetherford, 25 Mo. 439. (4) the bank was entered by robbers and that the robbers who entered it each had a pistol, was not a disputed point in the case. T......
  • State v. Ball
    • United States
    • Missouri Supreme Court
    • March 2, 1929
    ...as amended Laws 1921, p. 206, and 3974, 3990, 4035, R.S. 1919; State v. Witherspoon, 231 Mo. 706; Hutsing v. Maus, 36 Mo. 101; State v. Wetherford, 25 Mo. 439. (4) That the bank was entered by robbers and that the robbers who entered it each had a pistol, was not a disputed point in the cas......
  • State v. Mills
    • United States
    • Oregon Supreme Court
    • October 17, 2013
    ...trial in places other than the county in which the crime was committed. As the Missouri Supreme Court explained in State v. Wetherford, 25 Mo. 439, 440 (1857), “[t]he constitutional right of trial by jury of the vicinage is intended for the benefit and protection of the accused,” which coul......
  • State v. Greer
    • United States
    • Missouri Supreme Court
    • December 18, 1928
    ... ... This statute, ... declaratory of the rights of defendants, has, without change, ... been a part of our procedure since its enactment in 1833 (R ... S. 1833, p. 488, sec. 33). It has been construed but once ... during that time. [State v. Wetherford, 25 Mo. 439.] The ... construction placed upon it simply gives judicial approval to ... the words of the statute. The granting of the change of venue ... as to Downs had the effect to create a severance. A like ... construction has been given to similar statutes in other ... jurisdictions ... ...
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