The State v. Lynn
| Decision Date | 27 October 1902 |
| Citation | 70 S.W. 127,169 Mo. 664 |
| Parties | THE STATE v. PERRY LYNN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Washington Circuit Court. -- Hon. F. R. Dearing, Judge.
Affirmed.
Merrifield W. Huff, D. L. Rivers and Geo. M. Wilson for appellant.
(1) The circuit court of the twenty-first judicial circuit had no jurisdiction to try this case, the same having been illegally sent from St. Francois county. R. S. 1899, secs. 2594, 2595 and 2597. (2) The defendant has a constitutional right to trial in St. Francois county, which he has never waived or relinquished. Constitution, art. 2, sec. 22. (3) The trial court erred in overruling defendant's application and affidavit for a continuance, based on the absence of witness Casteel. State v. Dyer, 139 Mo. 199. (4) The court erred in refusing defendant's instruction 1 as to the effect of want of motive. (5) The court erred in instructing the jury as to any other degree of murder except the first degree. State v. Fitzgerald, 130 Mo. 407; State v Mitchell, 98 Mo. 657.
Edward C. Crow, Attorney-General, for the State.
(1) The circuit court of Washington county had jurisdiction of the cause. The bill of exceptions in this case does not show that any exception to the change of venue was made in the circuit court of St. Francois county, from which the case was sent to the circuit court of Washington county. Ever since the case of Potter v. Adams, 24 Mo. 159, it has been the settled doctrine of this court that the only way to remedy an improper change of venue, is to save exceptions thereto, and in the court in which ordered. State ex rel. v McKee, 150 Mo. 238; State v. Knight, 61 Mo 373; State v. Dodson, 72 Mo. 283; Squires v. Chillicothe, 89 Mo. 226; Keen v. Schnedler, 92 Mo. 516; Stearns v. Railroad, 94 Mo. 317. For this reason the objection to the change of venue should not be reviewed in this court. It has been distinctly ruled that an application for a change of venue of a cause constitutes no part of the record unless made so by the bill of exceptions. State v. Ware, 69 Mo. 332. The presumption is that the order granting the change of venue is correct until the contrary appears. State ex rel. v. McKee, 150 Mo. 234. (2) The Constitution provides that the accused shall have a right to a speedy public trial by a jury of the county in which the crime was committed, but it is also true that if he desires to waive that right by applying for a change of venue in the manner pointed out by the statute, he is at liberty to do so, and the constitutionality of this act authorizing a change of venue has been expressly sustained in the case of State v. Dyer, 139 Mo. 199. (3) It may be stated as a general rule that matters of continuances rest largely within the discretion of the trial court, and that unless it be made to appear that such discretion has been unwisely exercised, this court will not interfere. State v. Maddox, 117 Mo. 667; State v. Tatlow, 136 Mo. 678; State v. Cochran, 147 Mo. 516. The presumption is in favor of action of the court, and in order to convict it of error, it devolves upon the party complaining to show that the application for a continuance was improperly overruled, and that his rights have been prejudiced by reason thereof. State v. Cochran, 147 Mo. 516. (4) The refusal of the instruction on motive was not reversible error, if error at all. The absence of motive, even if disclosed by the evidence, is only a circumstance to be considered by the jury in favor of the prisoner. This is the extent of the weight to be given to it. The absence of an apparent motive is not conclusive of the innocence of the defendant. State v. David, 131 Mo. 397.
Defendant was convicted in the circuit court of Washington county of murder in the second degree, and his punishment fixed at ninety-nine years imprisonment in the State penitentiary, for having shot to death with a pistol at St. Francois county on May 13, 1900, one William Martin. He appeals.
It appears from the record that defendant and deceased were brothers-in-law, and at the time of the homicide occupied, with their respective families, different parts of the same house, situated on the farm of the Bonne Terre Farm and Cattle Company in St. Francois county. Deceased had been in the service of said company and in the occupancy of said house for about two years when defendant, with his permission, moved into a part of said house with his family, consisting of his wife, himself and two boys named Jeff and Willie Lynn, aged respectively about nine and six years. About two weeks before the homicide occurred, deceased and his wife, who is a sister of defendant, wanted him to move from the premises, and from that time trouble began between the families and continued to grow worse, finally culminating in the death of Martin. Mrs. Martin testified that on several occasions within a few weeks before the homicide she heard defendant threaten to kill her husband, and that she told him about it.
She also testified that thereafter, on the Sunday morning of the homicide, the defendant came to the door of his part of the house cursing and swearing and threatening that he would kill Martin, and that she became alarmed lest he would do so, and went out in the yard and met her husband and son who were then coming toward the house, and that when they approached the house the defendant came out with a pistol in his hand cursing and swearing at the deceased, threatening to shoot him, to which deceased replied, "Oh, I guess not." That defendant then immediately fired his pistol at deceased, the ball penetrating the head just above the right eye and passing through the head, from the effects of which deceased fell to the ground, and expired about twenty-four hours thereafter without ever regaining consciousness.
The evidence on the part of the defendant showed that defendant said he would move from the premises as soon as he could get a house to go into and that Joel Lynn, his brother, made a trip to Bonne Terre to try to get a house for him, but failed in so doing. Defendant testified that on the morning of the homicide deceased was out chopping wood, and that Martin's wife became angry at defendant's little boy and called the deceased to the house, saying that now is as good a time as any to kill Perry Lynn, and that the deceased came to the house with his ax in his hand, which was a double-bit ax, and that he approached the kitchen door on that side of the house in which defendant lived, and that defendant's wife and little boy were about the doorway and that defendant went to the doorstep and said to the deceased: but the deceased kept advancing and stepped up on the step as though to come into the house, with the ax drawn, and that defendant retreated to a safe drawer three or four feet away and secured a pistol and fired at the deceased, who fell backwards from the steps. The defendant also introduced evidence to the effect that deceased had made threats against him. The defendant's brother swore to that effect, as did also another witness, and that these threats were communicated to the defendant.
Deceased was unarmed at the time he was shot. Immediately after the shooting defendant fled to Clay county, Arkansas, where he was afterwards apprehended and returned to St. Francois county.
The court instructed for murder in the first and second degrees.
At the November term of the St. Francois Circuit Court defendant filed his motion for a change of venue, alleging as ground therefor the prejudice of the judge against him, and asking that the venue of said cause be changed to some court or judge where said prejudice did not exist. The record recites that it "appearing to the satisfaction of the court that no special judge will agree to try said cause if elected, it is by the court ordered that said cause be and the same is set down for trial on the 26th day of November, 1900, and Judge Dearing of the 21st judicial circuit invited to sit and try said cause."
On said 26th day of November, 1900, there was also entered of record in the circuit court of St. Francois county, an order which recites that Judge Dearing, "having been duly notified and requested to appear and preside over this court, and try this cause, and the said F. R. Dearing, judge as aforesaid, now failing to appear or to advise the judge of this court as to the time that it would be most convenient for him to appear and try this cause; it is therefore ordered by the court that the venue of this cause be changed to the county of Washington in the 21st judicial circuit of this State."
At the March term, 1901, of the Washington Circuit Court the cause was continued until the August term of said court. On August 26t...
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