The State v. Shaffer
| Citation | 161 S.W. 805,253 Mo. 320 |
| Parties | THE STATE v. GROVER SHAFFER, Appellant |
| Decision Date | 09 December 1913 |
| Court | United States State Supreme Court of Missouri |
Appeal from Clark Circuit Court. -- Hon. Samuel Davis, Judge.
Affirmed.
John A Whiteside and T. L. Montgomery for appellant.
(1) The application for change of venue on account of prejudice of the inhabitants of the county should have been sustained. State v. Goddard, 146 Mo. 181; State v Burgess, 78 Mo. 234; Randle v. State, 28 S.W 953; Higgins v. Com., 94 Ky. 54; Draughan v. Com., 45 S.W. 368; Ex parte Chase, 43 Ala. 303; Birdson v. State, 47 Ala. 74; People v. Youkum, 53 Cal. 566; State v. Billings, 77 Iowa 417; Gallaher v. State, 40 Tex. Cr. App. 296; Saffold v. State, 76 Miss. 258; Peoples v. Suesser, 132 Cal. 631; Barnes v. State, 14 Am. Cr. Rep. 229; Owens v. State, 82 Miss. 31. (2) Defendant's motion to quash the panel of jurors should have been sustained. State v. Wright, 161 Mo.App. 597, and authorities, supra. (3) Plaintiff's instruction number two given on part of the State is not the law as declared by numerous decisions of this court, with reference to the testimony of an accomplice, in that it includes the words "or corroborated by circumstances given in evidence as to matters material to the issues." State v. Shelton, 223 Mo. 137; State v. Daly, 210 Mo. 687; State v. Tobie, 141 Mo. 561; State v. Crab, 121 Mo. 565; State v. Black, 143 Mo. 171; State v. Sprague, 149 Mo. 423. (4) The court erred in giving plaintiff's instructions numbered three and four, in which the jury were instructed to take into consideration the interest of defendant and his wife in the result of the verdict. Secs. 5242 and 5244, R.S. 1909; State v. Starr, 244 Mo. 161; State v. Kilgore, 70 Mo. 559; Hickey v. United States, 160 U.S. 408, 16 S. Cal. 327; State v. Barrington, 198 Mo. 126. (5) The court should have given defendant's refused instruction marked "E." State v. Clark, 147 Mo. 20; State v. Talmage, 107 Mo. 550; State v. Feeley, 194 Mo. 324; State v. Neissline, 25 Mo. 124; State v. Clein, 154 Mo.App. 686; State v. Crabtree, 170 Mo. 127. (6) The court should have defendant's refused instruction marked "G." State v. Anderson, 86 Mo. 309; State v. Partlow, 90 Mo. 608; McNealey v. State, 36 P. 827 (Wyo.) ; Smith v. State, 10 Wyo. 157.
John T. Barker, Attorney-General, and W. M. Fitch, Assistant Attorney-General, for the State; S. P. Howell of counsel.
(1) The defendant filed his application for a change of venue on account of the prejudice of the inhabitants of the county against him. There was no showing made as to when the defendant was advised or when he obtained knowledge of such prejudice. Such showing should be made to entitle the application to a hearing at that time. State v. Blitx, 171 Mo. 530; State v. Lehman, 182 Mo. 424; State v. Callaway, 154 Mo. 91. It is also the duty of the applicant to show that he has acted promptly on learning the facts. Cases above; State v. Davis, 203 Mo. 616; State v. Clevinger, 156 Mo. 190; State v. Sharp, 233 Mo. 269. The court properly overruled the application. It should be borne in mind that it is the right of both the people and the accused to have the trial in the county where the crime is committed; upon an application for a change of venue on the ground of prejudice of the people, the court should see that the law providing for such change has been substantially complied with before a change is granted. (2) Corroboration may be by facts and circumstances, as well as by the testimony of witnesses. It is not necessary to have the accomplice corroborated by a living witness because the facts in the case, which are substantiated by other witnesses, may be as conclusive on the point involved as would be the testimony of a living witness. (3) Instruction 3 is a time-honored and approved instruction which cautions the jury to carefully weigh the testimony of the defendant and advising them that they may take into consideration the fact that he is defendant and testifying in his own behalf, and the interest he may have in the result of the case. This instruction in substantially the same form as given here has had the approval of this court many times. State v. Fox, 148 Mo. 517; State v. Dilks, 191 Mo. 674. Likewise instruction 4 has often had the approval of this court and especially when used in connection with instruction 3. Ordinarily we find these instructions combined and both given as one. State v. McDonnell, 232 Mo. 219; State v. Napper, 141 Mo. 407; State v. Stratman, 100 Mo. 547; State v. Lingle, 128 Mo. 538.
There was filed on the 21st day of March, 1912, in the circuit court of Clark county, an amended information charging defendant and one Guerdon Best with having on the 8th day of February preceding, committed grand larceny, for that they had stolen certain hogs in said information described. Guerdon Best pleaded guilty on April 1, 1912, was duly sentenced to the penitentiary on such plea and thereafter paroled pursuant to statute. The defendant, upon his trial, was found guilty and had assessed against him as punishment imprisonment in the penitentiary for a term of two years.
The appellant (whom we shall hereafter call the defendant) filed on the first day of April, 1912, which was the date upon which the circuit court of Clark county convened in regular term, his application for a change of venue on account of the prejudice of the inhabitants of Clark county against him. Thereafter and on the same day defendant filed a second application for a change of venue on account of the alleged prejudice against him of Judge Stewart, the regular judge of the Clark County Circuit Court. The latter application, coming on to be heard first, was sustained, and thereupon Judge Stewart called in Judge Samuel Davis, judge of the 15th Judicial Circuit, to try the case, and reset the same for trial at an adjourned term to be convened on Tuesday, April 23, 1912.
The case coming on for hearing before Judge Davis on the date last above mentioned, defendant refiled his application for a change of venue. This application, omitting caption and verification by defendant and his compurgatories, all of which latter things are formal, is in the following form:
"Now comes Grover Shaffer, one of the defendants in the above entitled cause, and states that the minds of the inhabitants of said county of Clark are so prejudiced against him that he cannot have a fair trial in the above cause in said county, wherefore he asks that the venue of said cause be changed to the circuit court of some other county in this circuit where such prejudice does not exist."
Upon a hearing had, defendant, to support the alleged prejudice which he averred existed against him, called, including himself, some thirteen witnesses, residing for the most part in the neighborhood, or within two or three miles of the place, where the alleged offense of the defendant was committed, and of whom at least three, if not more, were related to defendant, who swore to the existence of certain prejudice against him, which prejudice largely grew out, as was vaguely hinted in the record, of a murder and a trial therefor, in which murder a brother and certain cousins of defendant, as we are told in defendant's brief, had a part. This murder seems to have occurred more than twenty years before the instant case was tried and at a time when defendant was only some four or five years of age.
There was offered to combat the case thus made, some seventeen or more witnesses for the State, coming for the most part from the central and southern part of Clark county, and coming from divers avocations and walks of life. These witnesses for the State testified practically with unanimity that they knew of no prejudice existing in their several neighborhoods against defendant and had heard no prejudice expressed against him whatever. The court thereupon overruled the application for a change of venue and defendant saved his exceptions.
After the trial a jury of twelve men was chosen and sworn to try the case, and defendant filed a motion to quash the panel for that, as was averred in his said motion, the jurors had been selected from the central part of the county, the elisor who acted in this behalf having been, as was averred, directed by the court to select them from the southern part of said Clark county. This motion was overruled, but defendant took no exceptions to the action of the court in this behalf, nor does the record show that any order was made by the court that the jurors be gotten from the southern part of the county.
The testimony offered by the State tended to show that defendant who resided in the little village of Peaksville in Sweet Home township, in said Clark county, was at and prior to the date of the alleged theft of the hogs in question, contemplating engaging in the business of a butcher, and that to this end he had rented and had had partly fitted up a shop in the village of Revere, and that he had tentatively arranged with one Painter, who was a witness for the State, to have charge of this shop for him. The testimony of Guerdon Best, the accomplice of defendant, who, after his plea of guilty, sentence to the penitentiary and parole, was offered as a witness by the State, tended to show that Best began working for the defendant on the 5th of February, and that defendant communicated to Best his intentions of setting up a butcher shop and asked Best to go with him and get some hogs; that defendant and Best started at night, at about the hour of half-past ten and went along the public road a distance of a mile and a quarter from, and in a direction northwest of, defendant's residence to the premises of one Ben Best, who was the...
To continue reading
Request your trial