State v. Wilson

• Citation: 136 S.W.2d 993,345 Mo. 862
• Decision Date: 21 February 1940
• Docket Number: 36790
• Parties: The State v. Richard Wilson, Appellant
• Court: Missouri Supreme Court

136 S.W.2d 993

345 Mo. 862

The State v. Richard Wilson, Appellant

No. 36790

Supreme Court of Missouri

February 21, 1940

Appeal from Gasconade Circuit Court; Hon. R. A. Breuer Judge.

Reversed and remanded.

Carl E. Starkloff for appellant.

(1) The trial court erred in refusing defendant's demurrer at the close of the State's evidence. State v. Duncan, 50 S.W.2d 1021, 330 Mo. 656; State v. Simon, 57 S.W.2d 1062; State v. Durbin, 29 S.W.2d 80. This demurrer should have been sustained, State v Duncan, 50 S.W.2d 1023. Conviction cannot stand on presumption based on presumption, State v. Simon, 57 S.W.2d 1062. Even if defendant had had no chickens of his own and was selling chickens, such proof (if there had been such proof) does not supply the missing link in State's case. State v. Durbin, 29 S.W.2d 82. (2) The trial court erred in refusing defendant's demurrer at the close of all the evidence. State v. Duncan, 50 S.W.2d 1021 330 Mo. 656; State v. Matticker, 22 S.W.2d 647; State v. Freyer, 48 S.W.2d 894; State v. Durbin, 29 S.W.2d 80; State v. Moore, 95 S.W.2d 1167; State v. McMurphy, 25 S.W.2d 79; State v. Carter, 36 S.W.2d 917; State v. Ecklof, 11 S.W.2d 1033; State v. Dilley, 76 S.W.2d 1085, 336 Mo. 75; State v. Simon, 57 S.W.2d 1062; State v. King, 53 S.W.2d 252, 331 Mo. 268; State v. Morney, 93 S.W. 1117, 196 Mo. 43; State v. Richardson, 36 S.W.2d 944.

Roy McKittrick, Attorney General, and Ernest Hubbell, Assistant Attorney General, for respondent.

(1) The court did not err in refusing and failing to give the instruction, in the nature of a demurrer, offered by the defendant at the close of the State's evidence. State v. Lebo, 98 S.W.2d 697, 339 Mo. 960; State v. Barr, 78 S.W.2d 105, 336 Mo. 300. (2) The court did not err in refusing and failing to give the instruction, in the nature of a demurrer, offered by the defendant at the close of all the evidence. State v. Vinton 220 Mo. 100, 119 S.W. 370; State v. Hefton, 213 S.W. 442; State v. English, 274 S.W. 471, 308 Mo. 695; State v. Perkins, 116 S.W.2d 82, 342 Mo. 560; Morrow v. State, 19 Ala.App. 212, 97 S.W. 106; State v. Fitzsimmons, 89 S.W.2d 673, 338 Mo. 230; State v. Bennett, 87 S.W.2d 159; State v. Sinovich, 46 S.W.2d 877, 329 Mo. 909; State v. Kaufman, 46 S.W.2d 843, 329 Mo. 813; State v. Hall, 231 S.W. 1004; State v. Jeffries, 210 Mo. 325, 109 S.W. 614, 14 Ann. Cas. 524; State v. Sexton, 147 Mo. 101, 48 S.W. 452; State v. Reed, 89 Mo. 170, 1 S.W. 225, 6 Am. Crim. Rep. 76; State v. Harrold, 38 Mo. 310; Lindsey v. State, 70 S.E. 1114, 9 Ga.App. 299; State v. Mann, 217 S.W. 67; State v. Hogle, 137 S.W. 21, 156 Mo.App. 367; State v. Schaeffer, 273 S.W. 247, 221 Mo.App. 358; State v. Brock, 280 S.W. 48; State v. Ashcroft, 116 S.W.2d 129, 342 Mo. 608; State v. Walls, 170 S.W. 1113, 262 Mo. 105. (3) The Circuit Court of Gasconade County did not err in overruling defendant's plea in abatement, attacking the jurisdiction of the Circuit Court of Gasconade County on the ground that the cause had been erroneously transferred to said county upon a change of venue. State v. Bailey, 126 S.W.2d 228.

OPINION

Leedy, J.

Appellant was charged by indictment in the Circuit Court of Warren County, with the offense of stealing chickens in the nighttime. On his first trial the jury was unable to agree, and a mistrial was declared. Thereafter, in vacation, appellant filed an affidavit of prejudice against the judge of said court, and on the same day filed his application, with supporting affidavits, for a change of venue, based on the alleged bias and prejudice of the inhabitants of the County of Warren against him, and praying that the venue be awarded to another county in the Eleventh Judicial Circuit.

At the next term, the regular judge made an entry disqualifying himself, and calling in Hon. Ransom A. Breuer, Judge of the Thirty- Second Judicial Circuit "to preside and determine the issue in the application and affidavits of defendant heretofore filed in this captioned cause for a change of venue." On the same day, Judge Breuer being present, and assuming the bench, sustained the application for a change of venue, and ordered the venue changed to the Circuit Court of Gasconade County, in the Thirty-Second Judicial Circuit. In the latter court, upon a trial by jury, appellant was convicted, and his punishment assessed at a fine of One Hundred Dollars, and thirty days imprisonment in the county jail, and he appeals.

At the threshold of the case, we are met with respondent's insistence that the appeal must be dismissed for the reason, as alleged in its motion to dismiss, that no "written application" for such appeal was filed. The contention is based on the fact that the record shows appellant filed his affidavit for an appeal, conforming in all respects to the requirements of the code of civil procedure in relation to appeals (Sec. 1020, R. S. '29, Sec. 1020, Mo. Stat. Ann., p. 1295); whereas, the statute governing appeals from judgments rendered upon indictments or informations (Sec. 3740, R. S. '29, sec. 3740, Mo. St. Ann., p. 3286) requires, as a condition for the allowance of an appeal, that "defendant or his attorney of record shall . . . file his written application for such appeal." (Italics ours.)

The requirements of the statute with respect to appeals in criminal cases have undergone change from time to time. Under Sec. 2696, Revised Statutes 1899 (Sec. 4277, R. S. 1889; Sec. 1973, R. S. 1879; Sec. 1, p. 855, Gen. Stat. 1865) the condition imposed upon the defendant in order to perfect an appeal was simply that it be "applied for" during the term at which the judgment was rendered. This was changed by Laws 1909, page 461 (Sec. 5292, R. S. '09; Sec. 4086, R. S. '19) so as to require an affidavit precisely like that provided under the code of civil procedure, except it could not be made by an agent or attorney. The statute in its present form, requiring a "written application" was enacted in 1925.

The affidavit in the case at bar (omitting caption, signature and jurat) reads as follows: "Richard Wilson, being duly sworn, makes oath and says that the appeal prayed for in the above entitled cause is not made for vexation or delay, but because affiant believes that the appellant is aggrieved by the judgment and decision of the court." The objection that this instrument is not a "written application" for an appeal is that the affidavit "does not purport to contain a prayer for an appeal. Its reference to 'the appeal prayed for in the above entitled cause' is in the past tense, as if at some previous stage of the case a prayer for an appeal had been made." In State v. Smith, 190 Mo. 706, 90 S.W. 440, decided in 1905, under Section 2696, Revised Statutes 1899, embodying the requirement that the appeal be "applied for," it was held that an affidavit conforming to the civil code was not necessary, but in reaching that conclusion it was pointed out that, "In the country circuits the universal practice in perfecting appeals conforms to the requirements, of the statute applicable to civil cases, and affidavits are invariably filed." That practice has again grown up under the present statute, as the instant case attests. We think the filing of such an affidavit a substantial compliance with the statute, and, therefore, overrule the State's motion to dismiss.

We examine first the assignment that it was error to overrule defendant's plea in abatement, which was filed after the case was lodged in the Circuit Court of Gasconade County. The plea was bottomed on an attack of so much of the order of Judge Breuer, sitting as special judge of the Warren Circuit Court, sustaining defendant's application for a change of venue (for the alleged bias and prejudice of the inhabitants of said county against him) as transferred the case out of the Eleventh Judicial Circuit, of which Warren County is a part, and into the Thirty-Second Judicial Circuit.

Appellant did not object nor except to the action of the court in ordering the case transferred to Gasconade County. He sought to raise the question of the jurisdiction of the latter court by filing his plea in abatement therein. The recent case of State v. Bailey, 344 Mo. 322, 126 S.W.2d 224, is squarely in point on that question. It was there said, "Nevertheless, in spite of the error, appellant is in no position to take advantage of it. There is nothing in the record showing that when Judge Barton granted the change of venue from Shannon County and sent the cause to Dent County, the appellant saved his exceptions and preserved them in a bill of exceptions in the Shannon County Circuit Court. What he did do was to attempt to raise the question after the cause had been transferred to Dent County by filing a plea to the jurisdiction in the circuit court of that county. This was futile. The point must be raised and saved in the court where the change of venue was ordered. [State ex rel. Wolfner v. Harris (banc), 312 Mo. 209, 278 S.W. 669.]" The point is, accordingly, ruled against appellant.

The serious question in the case is whether appellant's challenge of the sufficiency of the evidence is to be sustained, and this necessitates a rather lengthy resume of the facts. Nellie Winters lived on a farm with her two brothers, T. J. and William Morrisey, some six miles northwest of Warrenton, in Warren County. On the night of October 24, 1938, the night in question, the dogs were heard to bark, but no effort was made to ascertain if there were intruders on the premises. The next morning, about nine severed heads of Plymouth Rock chickens, the kind kept by Mrs. Winters, were found, with blood and feathers, some sixty or seventy yards back of the henhouse. Two of the heads, by reason of particular markings, were identified as being of Mrs....