The State v. Billings

• Decision Date: 22 June 1897
• Parties: The State v. Billings, Appellant
• Court: Missouri Supreme Court

41 S.W. 778

140 Mo. 193

The State v. Billings, Appellant

Supreme Court of Missouri, Second Division

June 22, 1897

Appeal from Bollinger Circuit Court. -- Hon. James D. Fox, Judge.

Affirmed.

Nalle & Morgan for appellant.

(1) Appellant's motion for discharge filed September 14 1896, and also the one filed March 14, of the preceding term ought to have been sustained. These were the elapsed and existing terms without trial. Four terms held and no trial. There was neither cause nor grounds for the delay. This was not the "speedy trial" prescribed by the Constitution, and fixed by sections 4222, 4223, and 4224, Revised Statutes of Missouri 1889. Defendant was in the jails all the time. The plea in abatement ought to have been sustained. (2) The second indictment was not to correct error nor defect in the first one, nor to rectify any proceedings touching the accusation, either in the Bollinger or Butler circuit courts, but was the result of the established prejudice, and, as admitted, to deprive appellant of a fair trial before an impartial jury of the county. An impartial jury in Butler county could not find appellant guilty of any offense, and yet the jury in Bollinger county, having the same issues to determine, without much delay, find appellant guilty of the highest grade of the offense they had to pass upon. The filing of the verified copy of the new indictment in the Butler county circuit court, and the quashing of the old one by that court, gave that court exclusive jurisdiction, for such copy perfected the records therein as the venue for final trial. (3) The verdict on appellant's plea of a former acquittal should have been for appellant. The court and State in the trial in the Butler circuit court after hearing all the evidence, submitted to the jury the issues of murder in the second degree, manslaughter in the fourth degree and justifiable homicide only. The jury retired to consider their verdict, returned into court the same day without verdict and was discharged by the court. This operated an acquittal of murder in the first degree at least, and the judgment of nolle prosequi in favor of defendant, his discharge with judgment for cost at the November term following and no further prosecution in said county on the copy of indictment filed then or otherwise, for said accusation of murder was a full and complete acquittal even under Constitution and statutes of this State. Missouri Constitution, art. 2, sec. 22; R. S. 1889, secs. 3952, 3953-4102. (4) If appellant could have been indicted at all he must have been re-indicted in Butler county, as the district and county previously ascertained by law. R. S. 1889, sec. 4167. The qualifying language in the Missouri Constitution ought only to operate so far as it affects his liberty, not otherwise, it would abrogate the jeopardy rule fixed by the United States Constitution, as it effects his life and limb. U. S. Const., art. 5. (5) The State's witnesses indorsed on the indictment and summoned are adverse. It was the right of the defendant to "face" them. The State failing to bring them in to testify, appellant may not be deprived by the State of his right to cross-examine them, and in calling them he does not thereby waive his right to confront them face to face, and subject them to cross-examination. (6) The court's instructions should have given to the jury two issues only, viz., murder in the first degree and justifiable homicide. The evidence heard by the jury tended to establish one or the other of those issues only and not to establish any other.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) The failure to try defendant was not caused by the prosecution, and if done at the instance of defendant or by want of time by the court to try, no exceptions can be taken by defendant. State v. Nugent, 71 Mo. 147; R. S. 1889, secs. 4222. It can not therefore be held that defendant was entitled to a discharge. (2) In the event the prosecution had insisted on trial under the first indictment a plea in abatement would have been proper. But not when the prosecution insists on trial under the second indictment. State v. Vincent, 91 Mo. 664. The statutes, section 4102, recognizes the right of the State to file a new indictment for the same offense at any time while the first is pending and before the final trial, and the first indictment can not be held to bar the second. State v. Eaton, 75 Mo. 586. (3) Defendant can not complain of trial being had in Bollinger county where the inhabitants were, as he claimed, prejudiced against him. After the court had granted a change of venue it was of his own volition that the order of such change was set aside. (4) The filing of the verified copy of the new indictment in the Butler county court did not give that court jurisdiction of the case. Each case must be tried in the county where the indictment is found, unless removed in a manner prescribed by law. The new indictment was a separate and distinct case from the former. (5) Indictment must be found in the county where the offense is committed. The grand jury of Butler county had no jurisdiction over the offense. (6) For the reason defendant was tried on charge of murder in the first degree and the jury failed to agree upon a verdict he is not on that account excused from a second trial on the same charge. State v. Ross, 29 Mo. 32; State v. Simms, 71 Mo. 540. (7) Defendant was not denied the right to face the State's witnesses and cross-examine them, nor is the State compelled to examine all witnesses indorsed on the indictment. Failure to do so would in no wise prejudice defendant. State v. Eaton, 75 Mo. 594.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

From a conviction of murder in the second degree in the circuit court of Bollinger county, defendant has appealed.

The evidence tends to prove that on the twenty-fifth day of August, 1894, the defendant and William H. Smith were in a restaurant kept by one Jesse Lutes in the town of Lutesville; that a wordy altercation took place between them; that deceased had an ordinary barlow knife in his hand which he was using in cutting some cheese which he was eating. Defendant arose and went out into the street or space in front of the restaurant. It was a dark, cloudy and rainy night. After defendant went out deceased followed him to the door and while standing in the door or on the platform in front of it a shot was fired which struck deceased and he immediately fell, exclaiming that he was killed. Defendant was seen standing in front of the restaurant on the street a few minutes after the shooting and admitted doing the shooting. He had a smoking revolver in his hand and made the remark that he didn't think Smith, the deceased, would follow him again. Smith died the next morning. The principal plea was that of self-defense; that Smith was a dangerous character and had on several occasions threatened to take defendant's life, and to avoid such threatened danger defendant had shot and killed him. The motion for a new trial assigned fourteen grounds for setting aside the verdict and discharging the prisoner. This motion perhaps presents the best order in which the various alleged errors can be considered and determined. The motion is as follows:

"1. The court erred in assuming jurisdiction over the person of defendant and over the subject-matter charged in the indictment herein, and in overruling defendant's several pleas and motions filed and submitted to the court at the last term of this court, and in refusing to hear the proofs offered by defendant in support of said pleas and motions and heard by the court at said last term.

"2. The court erred in overruling defendant's motion to be discharged from further pleading herein, filed at this term and in refusing to consider the proofs of defendant, offered and by the court heard, on said motion.

"3. The court erred in permitting over defendant's objection, the jury to hear incompetent, irrelevant and illegal evidence offered by the State, and in excluding and in refusing to permit the jury to hear competent, relevant and legal evidence offered by the defendant.

"4. The court erred in refusing to permit the defendant to cross-examine the material witnesses on the part of the State whose names were indorsed by the grand jury on the indictment herein and not called by the State to testify herein, and also in refusing to permit defendant to cross-examine the witnesses for the State summoned by the State and not called by the State to testify.

"5. The court erred in compelling defendant on his calling the witnesses aforesaid to examine them in chief as his own, when their names were returned on said indictment and on said summons or subpoenas for the State, as witnesses adverse to and against him.

"6. The court erred in permitting the State to withhold from and not allow the defendant to meet the witnesses against him face to face at and during the trial, and particularly all of those indorsed on the indictment by the grand jury.

"7. The court erred in giving the jury illegal instructions on the part of the State and in refusing to give to the jury proper and legal instructions suggested and offered by the defendant.

"8. The verdict of the jury is against the evidence and the weight of the evidence; against the law and the instructions of the court.

"9. The court erred in failing to give to the defendant a speedy and public trial before an impartial jury.

"10. The court erred in compelling defendant to go to trial before a jury of said county after the court, upon the proofs heard by the court, had adjudged that the inhabitants of said county were prejudiced against him.

"11. The court erred in that the...