The State v. Dyer

• Decision Date: 28 May 1926
• Docket Number: 26990
• Citation: 285 S.W. 101,314 Mo. 608
• Parties: THE STATE v. FRANCIS DYER, Appellant
• Court: Missouri Supreme Court

285 S.W. 101

314 Mo. 608

THE STATE v. FRANCIS DYER, Appellant

No. 26990

Supreme Court of Missouri

May 28, 1926

Appeal from Dunklin Circuit Court; Hon. W. C. S. Walker Judge.

Affirmed.

Munger & Munger and J. W. Farris for appellant.

(1) The admission of incompetent and irrelevant evidence over the objection of defendant, where such evidence is calculated to affect the verdict to defendant's prejudice, will work a reversal. State v. Allen, 246 S.W. 946; State v Anglin, 222 S.W. 778; State v. Brown, 188 Mo 464. (2) The exclusion of competent and relevant evidence offered on behalf of defendant will reverse the cause.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) Before the Amendment of 1921 the granting of a change of venue because of local prejudice was within the sound discretion of the trial judge. State v. Anderson, 252 Mo. 83; State v. Shoffer, 253 Mo. 320; State v. Jackson, 227 S.W. 647. After the Amendment of 1921 the granting of a change of venue for local prejudice when properly applied for is mandatory. Sec. 3973, Laws 1921, p. 206. In the instant case a change of venue was granted from one county to another county within the same judicial circuit because of local prejudice. Appellant contends that error was committed because the case was not sent to some other county in some other circuit. This is a matter within the sound discretion of the trial court. Sec. 3973, Laws 1921, p. 206; State v. Smith, 281 S.W. 38. (2) The instructions to the jury were proper. State v. Williams, 274 S.W. 427; State v. Steelman, 273 S.W. 409; R. S. 1919, sec. 3305; State v. Glon, 253 S.W. 364; State v. Caulder, 262 S.W. 1023; State v. Williams, 274 Mo. 427. (3) The evidence is sufficient to support the verdict of guilty. State v. Steelman, 273 S.W. 409; State v. Glon, 253 S.W. 364; State v. Caulder, 262 S.W. 1023. (4) The record discloses no reversible error in the admission and exclusion of evidence.

OPINION

Walker, P. J.

The defendant was charged by information in the Circuit Court of Stoddard County with burglary in the second degree and larceny. Upon a trial in the Circuit Court of Dunklin County, to which the case was transferred on a change of venue, the defendant was convicted of burglary as charged, sentenced to two years' imprisonment in the penitentiary, and acquitted of the larceny.

His application for a change of venue was based on the alleged prejudice of the inhabitants of the Twenty-second Judicial Circuit, which is composed of the counties of Stoddard and Dunklin. This application was supported by the affidavits of alleged prejudice against the defendant by disinterested citizens of each of said counties, and was overruled as applicable to the circuit, and a change granted to Dunklin County, where, upon a trial, a conviction was had as stated.

The store of B. J. Smith & Company, at Bell City, Stoddard County, was burglarized May 9, 1923, and a variety of merchandise of the value of seventy-five dollars stolen therefrom. A short time after the burglary one of the owners of the store remarked in the presence of the defendant that the perpetrators of the crime were known. Following this declaration the defendant disappeared from the neighborhood. One of the perpetrators of this crime, Giles McCray, who turned State's evidence, stated that he was solicited by the defendant to join in the commission of this offense; that about midnight, May 9, 1923, the witness, the defendant and two others, Charles Gregory and Dutch Morse, broke into the store and stole therefrom a quantity of goods. After the commission of the crime they drove into the country about two miles, divided the goods and went to their respective homes. A few days thereafter the witness and Charles Gregory and the defendant were riding on the highway in defendant's car, and upon meeting a deputy sheriff they refused to stop when signaled to do so, but passed the officer rapidly, went to a railroad station, took a train to St. Louis and thence to Chicago. Their departure from the State was because the officers were after them. The defendant was afterwards arrested in Michigan and brought back for trial.

I. The defendant alleges error in the refusal of the trial court to grant a change of venue to a circuit court not in the judicial circuit in which the information was filed. The statute (Sec. 3973, R. S. 1919, as amended, Laws 1921, p 206) is definitely determinative of this question. In counties of less than seventy-five thousand, if the application for a change of venue is supported by the affidavit of five or more disinterested citizens residing in different neighborhoods...