State v. Worrell

• Court: Missouri Supreme Court
• Writing for the Court: RYLAND
• Citation: State v. Worrell, 25 Mo. 205 (Mo. 1857)
• Decision Date: 31 March 1857
• Parties: THE STATE, Respondent, v. WORRELL, Appellant.

25 Mo. 205

THE STATE, Respondent,

v.WORRELL, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. Where a petition of a defendant in a criminal prosecution for a change of venue sets forth one of the statutory grounds for such change, the order removing the cause will not be rendered null and void by reason of an omission to specify therein the cause of removal.

2. Where a motion for a continuance, on the ground of the absence of a material witness, is overruled, the Supreme Court will not hold it to be error, if it clearly appear that the testimony of the absent witness would not have affected the result.

Appeal from Franklin Circuit Court.

It is deemed unnecessary to state the facts more fully than they are set forth in the opinion of the court.

U. Wright, for appellant.

I. The Franklin Circuit Court had no jurisdiction of the cause, the order of removal by the Warren Circuit Court being illegal, and insufficient to take away the jurisdiction of the latter court.

II. The court erred in forcing defendant to trial. The causes of continuance were sufficient in law to support the motion. This court has always recognized discretion thus unsoundly exercised as error. (1 Mo. 700; 3 Mo. 28; 6 Mo. 444; 8 Mo. 500; 9 Mo. 19; 12 Mo. 492.)

III. There was a variance. If a murder be elevated to murder in the first degree, because done in the perpetration of a felony, or in the attempt to perpetrate a felony, then the fact of the felony is a material fact essential to the crime, and on every just and established principle of pleading it should be charged. (3 Mo. 364; 20 Mo. 58; 24 Penn. 389.)

IV. The court erred in refusing the instruction asked by defendant. (Lewis' C. L. 405, 431; 4 Hump. 136; Swan v. State; Mitchell v. State, 5 Yerg. 340; Dale v. State, 10 Yerg. 551; Pirtle v. State, 663; Hale v. State, 11 Hump. 154.)

V. The evidence being purely circumstantial, was not legally sufficient to establish the crime charged. (Wills on Circ. Ev. 149, rule 4; Burrill on Circ. Ev. 737; 1 Stark. Ev. 511; 25 Miss. 584.)

C. G. Mauro (circuit attorney), and J. D. Coalter, for the State.

RYLAND, Judge, delivered the opinion of the court.

The defendant, Edward D. Worrell, was indicted with William H. Bruff for the murder of Bazil H. Gordon, at the May term of the Circuit Court of Warren county, A. D. 1856. The defendants were arraigned, and pleaded “not guilty” to the indictment, and on their petition the venue was changed from the Circuit Court of Warren county to the Circuit Court of Franklin county--the petitioners alleging, in their application for the change, that they believed the inhabitants of the entire judicial circuit (of which Warren county composed a part) are so prejudiced against the defendants that a fair trial cannot be had in the same. At the September term of the Franklin Circuit Court, A. D. 1856, the case was called, and the trial was postponed to a special adjourned term of said court, to be held on the 19th day of January, A. D. 1857. At the special adjourned term of said Franklin Circuit Court, held on the 19th day of January, 1857, the parties appeared--the defendants had severed in their trials--and the defendant, Worrell, moved for a continuance of the cause; filed his own and other affidavits in support of his motion, which motion being overruled, he saved the point by his bill of exceptions. A trial was then had, and the defendant was found guilty of murder in the first degree. He moved for a new trial, assigning, among other causes, that the court had improperly overruled his motion for a continuance. The court overruled a motion for a new trial; the defendant excepted, and saved the point. He also moved in arrest of judgment for the reasons that, 1st, the court had no jurisdiction of the cause; 2d, the indictment was insufficient to sustain judgment; 3d, because the judgment is for the wrong party. This motion being also overruled, he excepted, and saved the point by his bill of exceptions. He thereupon prayed for an appeal to this court, which was granted, and the execution of the sentence was ordered to be stayed until the judgment of this court be had in the case.

The counsel for the prisoner relies upon the following points for a reversal of the judgment in this case. 1st. That the Franklin Circuit Court had no jurisdiction of the cause, the order of removal by the Warren Circuit Court being illegal and insufficient to take away the jurisdiction of the latter court. 2d. The court erred in overruling the application for a continuance, and in forcing the defendant to trial. 3d. Variance between the murder, as charged in the indictment, and the murder (if any), made out in the proof. 4th. The court erred in refusing the instruction asked by defendant. 5th. The evidence, being purely circumstantial, was not legally sufficient to establish the crime charged, and that this is a question for this court.

We have carefully examined the questions raised by the several points relied on by the counsel, and will state the result of our conclusions in regard thereto; not in the order as presented by the counsel, and here laid down, but nevertheless we shall notice the various propositions in our own way. We begin with the first proposition, the change of venue. By our statute concerning “Practice in Criminal Cases” (art. 5), the change of venue in such cases is regulated. It may not be improper here to cite several of the sections of this article. “Sec. 15. Whenever any indictment or prosecution for a criminal offense shall be pending in any court against the judge thereof, the same shall be removed to the Circuit Court of some county in a different circuit, upon the order in writing of the circuit attorney prosecuting for the circuit, or upon the order of any judge of the Supreme Court. Sec. 16. When any indictment or criminal prosecution shall be pending in any Circuit Court, the same shall be removed by the order of such court, or the judge thereof, to the Circuit Court of some county in a different circuit, in either of the following cases: 1st, when the judge of the court in which the cause is pending is near of kin to the defendant by blood or marriage; or, 2d, where the defendant is a slave, and such judge, or a person near of kin to him, is the owner, or has any interest in such slave; or, 3d, where the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him; or, 4th, where the judge is in anywise interested or prejudiced, or shall have been counsel in the cause. Sec. 17. Any criminal cause pending in any Circuit Court may be removed by the order of such court, or the judge thereof, to the Circuit Court of another county in the same circuit, whenever it shall appear in the manner hereinafter provided 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. Sec. 18. Whenever it shall appear in the manner hereinafter provided that the inhabitants of the entire circuit are so prejudiced against the defendant that a fair trial cannot be had therein, the cause shall, by order of the court, or judge, be removed to another circuit, in which such prejudice is not alleged to exist. Sec. 19. Such order of removal, as specified in the two preceding sections, shall be made on the application of the defendant; or, where the defendant is under the age of sixteen, or is a slave, on the application of such slave, or of the owner, etc. Sec. 20. The petition of the appellant for a change of venue shall set forth the facts, and the truth of the allegations shall be supported by the affidavit of the defendant, or some credible disinterested person, etc. Sec. 21. Whenever it shall be within the knowledge of a court or judge that facts exist which would entitle a defendant to the removal of any criminal cause on his application, such court or judge may make an order for such removal, without any application by the party for that purpose. Sec. 22. Every order for the removal of any cause under the foregoing provisions, shall state whether the same is made on the application of the party, or on facts within the knowledge of the court or judge, and shall specify the cause of removal, and designate the county to which the cause is removed. Sec. 25. Every order for the removal of a cause, if made in term, shall be entered on the minutes; if made by an officer out of court, shall be in writing, and signed by such officer, and shall be filed by the clerk with the petition (if any) as a part of the record in the cause. Sec. 31. Whenever any order shall be made for the removal of any cause, under the foregoing provisions, the clerk of the court in which the same is pending shall make out a full transcript of the record and proceedings in the cause, including the order of removal, the petition therefor (if any), and the recognizance of the defendant, and of all witnesses, and shall transmit the same, duly certified under the seal of the court, to the clerk of the court to which the removal is ordered. Sec. 32. On the receipt of such transcript by the clerk of the court to which any cause is removed, he shall file the same as a record of his court, and the same proceedings shall be had in the cause in such court in the same manner and in all respects as if the same had originated therein.”

The record before us shows the following petition filed by the defendants for a change of venue:

“State of Missouri v. Edward D. Worrell and William H. Bruff. Indictment for murder. Warren Circuit Court--Spring term, 1856. Edward D. Worrell and William H. Bruff, upon their oaths, state that they believe the inhabitants of this entire judicial circuit are so prejudiced against the defendants that a fair trial cannot be had in the same; therefore defendants ask for a change of venue to some other circuit. [Signed] Edward D. Worrell, William H. Bruff. Subscribed and sworn...