State v. Wilcox

• Decision Date: 01 December 1931
• Docket Number: 31054
• Citation: 44 S.W.2d 85
• Parties: STATE v. WILCOX
• Court: Missouri Supreme Court

44 S.W.2d 85

STATE v. WILCOX

No. 31054

Supreme Court of Missouri, Second Division

December 1, 1931

Clayton W. Allen, of Rockport, and A. M. Tibbels, of Mound City, for appellant.

Stratton Shartel, Atty. Gen., and Silas E. Garner, Sp. Asst. to Atty Gen., for the State.

OPINION

FITZSIMMONS, C.

Upon trial in the circuit court of Atchison county, defendant, on February 27, 1930, was found guilty of the unlawful manufacture of hooch, moonshine, and corn whisky, and his punishment was fixed at four years in the penitentiary. His motion for a new trial having been overruled, he took and perfected an appeal to this court.

I. Defendant's first assignment of error is directed at the action of the trial court in overruling his application for a change of venue. The application, after reciting the charge against the defendant, states: 'That your petitioner and affiant has good reasons to believe and does believe that he can not have a fair and impartial trial in said cause in said Atchison County, for the reason that the minds of the inhabitants of Atchison County are so prejudiced against this said defendant and affiant that he cannot have a fair and impartial trial therein; that the population of said Atchison County, is now less than seventy-five thousand.' The application prayed for a change of venue to some other county in the same circuit. Defendant filed in support of his application five affidavits of citizens of Atchison county, residing respectively in the townships of Tarkio, Clay. Templeton, Nishnabotna, and Clark. These affidavits are in identical words, except as to the name of the affiant and of the township in which the affiant lives. The pertinent part of one of these affidavits is as follows: 'This affiant believes and does believe that the matters and things set forth in the said petition and affidavit are true, for the reason he has discussed the above entitled case with the citizens and inhabitants of Tarkio Township, county and state aforesaid, and heard the above case discussed adversely to this defendant, by divers citizens and inhabitants of said Tarkio Township, and that the minds of said citizens and inhabitants are prejudiced against the defendant, Donald Wilcox, and that the said defendant Donald Wilcox can not have a fair and impartial trial in said county, because of the bias and prejudice of the inhabitants of said county. Affiant further states that he is not of kin to or counsel for the said defendant, Donald Wilcox.' The state does not question the reasonable previous notice to the prosecuting attorney of the application required by the statute. We take judicial notice that the population of Atchison county is less than 75,000. Section 3630, R. S. 1929 (section 3973, R. S. 1919), as repealed and re-enacted in 1921 (Laws of 1921, p. 206), contains this proviso: 'Provided, in all cases in counties in this state which now have or may hereafter have a population of less than seventy-five thousand inhabitants if such petition for change of venue is supported by the affidavits of five or more credible disinterested citizens residing in different neighborhoods of the county where said cause is pending, then the court or judge in vacation, shall grant such change of venue, as of course, without additional proof.'

The constitutionality of this proviso was not questioned in the case, and is not before us. Upon the face of the application and of the supporting affidavits, the trial court denied the application for a change of venue. The court took the view that, under the authority of State v. Hancock, 320 Mo. 254, 7 S.W.2d 275, the supporting affidavits stated conclusions and not facts, and therefore were not sufficient.

In the Hancock Case, there were two applications for a change of venue. In each application the defendant stated that he had good reason to believe and did believe that he could not have a fair and impartial trial, because of the prejudice of the inhabitants. The affidavits supporting the first application merely stated that, to the best knowledge and belief of affiants, defendant could not have a fair and impartial trial for the reasons stated in the application. Of the first application, the court said [320 Mo. 254, 7 S.W.(2d) loc. cit. 277]: 'We are unable to find in either application or the affidavits supporting the first application the statement of any fact whatsoever. Legal conclusions only are found therein, and such are insufficient for the purpose intended.' The affidavits supporting the second application for a change of venue in the Hancock Case averred that, owing to the fact that the regular panel of jurors was not in attendance and that a 'picked up' jury was being assembled to try the defendant, 'there was a prejudice against a man charged with the crime with which the defendant stands charged.' This clearly was an illogical statement of a conclusion without a scintilla of a fact.

In the instant case, the supporting affidavits state that the affiants have discussed the case of defendant with the citizens of their respective townships, 'and heard the above case discussed adversely to this defendant by divers citizens and inhabitants.' That is a statement of fact, save for the word 'adversely.' That one word should not transmute the statement into a conclusion devoid of any fact whatever. It is true that the affidavits do state conclusions when they say 'that the minds of said citizens are prejudiced against the defendant Donald Wilcox and that the said defendant Donald Wilcox can not have a fair and impartial trial in said county.' But it is a statutory fact which must appear, and therefore should be alleged, 'that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had therein.' Section 3626, R. S. 1929. If there are in the supporting affidavits statements approximating to facts, the affidavits should not lose their legal efficacy if they also state as conclusions the ultimate statutory fact of prejudice of the inhabitants. In hearings in criminal cases upon applications for change of venue, witnesses may testify, after narrating facts, that sentiment in a given neighborhood is against a defendant, or that the public talk about a defendant is favorable or unfavorable. State v. Vickers, 209 Mo. 12, 106 S.W. 999. This court said in State v. Rose, 193 S.W. 811, loc. cit. 812, concerning the scope of the testimony of witnesses at a hearing upon an application for a change of venue: 'It was the privilege merely of the witnesses to say whether prejudice, bias, and hostile feeling toward defendant existed; it was the province of the court upon these facts as detailed by the witnesses to find and say whether this feeling existed to an extent which precluded to defendant a fair and impartial trial. State v. Burgess, 78 Mo. 234; State v. Vickers, 209 Mo. 12, 106 S.W. 999.'

If such is the latitude across which a witness may range in a proceeding in which the truth of the allegations is to be proved 'to the satisfaction of the Court by legal and competent evidence' (section 3630, R. S. 1929), a more strict and narrow rule should not be applied, in counties having less than 75,000 inhabitants, to affidavits of 'credible, disinterested citizens,' upon the strength of which the court shall grant a change of venue 'as of course.' Since the defendant in this case merely applied for a change of venue from Atchison county, the duty of the court to grant the change was mandatory if the application and affidavits were sufficient. State v. Smith, 313 Mo. 71, 281 S.W. 35; State v. Dyer, 314 Mo. 608, 285 S.W. 101.

The affidavits in this case are to be distinguished from those in State v. Stough, 318 Mo. 1198, 2 S.W.2d 767. Here there were five separate affidavits showing on their face that each affiant lived in a different township, and therefore 'in different neighborhoods of the county.' In the Stough Case, there was a joint affidavit of six persons reciting that the affiants resided in different localities in the county, and that the facts alleged in the application were correct. But the application itself alleged no fact, but merely stated that defendant could not have a fair and impartial trial on account of the prejudice of the inhabitants of the county. Neither is this case to be ruled by State v. Bradford, 314 Mo. 684, 285 S.W. 496. There the application for a change of venue recited that the defendant could not have a fair and impartial trial on account of the prejudice of the inhabitants of St. Charles county, and of the judicial circuit in which that county was located. The application was supported by the joint affidavit of eight 'residents and citizens of St. Charles County,' who alleged that the minds of the inhabitants of the county and of the circuit were prejudiced against defendant. In the Bradford Case, there were wanting the separate affidavits of 'five or more credible disinterested citizens residing in different neighborhoods of the county,' and the affidavit that was filed merely repeated the conclusions of the application.

In our opinion, the trial court erred in holding that the supporting affidavits stated merely conclusions, and in denying defendant's application for a change of...