The State v. Thompson

• Decision Date: 16 November 1897
• Citation: 42 S.W. 949,141 Mo. 408
• Parties: The State v. Thompson, Appellant
• Court: Missouri Supreme Court

42 S.W. 949

141 Mo. 408

The State v. Thompson, Appellant

Supreme Court of Missouri, Second Division

November 16, 1897

Appeal from St. Louis Criminal Court. -- Hon. Thomas B. Harvey Judge.

Affirmed.

Marion C. Early for appellant.

It was error to admit in evidence for the purpose of comparison certain extraneous handwritings under the provisions of section 8944a, Session Laws of 1895, because the same is in violation of article 1, section 10, Constitution of the United States, and also in violation of article 2, section 15, Constitution of Missouri, which provides that no ex post facto law shall be passed. State v. Bond, 4 Jones (N. C.), 4; Hart v. State, 40 Ala. 32; State v Johnson, 12 Minn. 386; Calder v. Bull, 3 Dallas, 386; Kring v. Missouri, 107 U.S. 221; Story on the Constitution, sec. 1345; Cooley, Const. Lim pp. 319-325; Hare's Am. Const. Law, p. 565; Kent's Commentaries, p. 458; Black on Const. Prohibitions, sec. 234, et seq.; Miller on the Const., p. 587; Hopt v. Utah, 110 U.S. 574.

Edward C. Crow, Attorney-General, C. O. Bishop and T. C. Egger for the State.

(1) There was no error in overruling appellant's application for a change of venue. State v. Wilson, 85 Mo. 139; State v. Bohanan, 76 Mo. 564. (2) The point made that the above cited act of 1895 is ex post facto as to this cause is not preserved in the motion for new trial and therefore is not properly here for review. The contention of appellant, however, is fully met by State v. Taylor, 134 Mo. 109. (3) The law creating two divsions of one tribunal having the same powers and jointly exercising the same jurisdiction as those possessed and exercised by that tribunal previously when undivided is not ex post facto. State v. Jackson, 105 Mo. 196; Duncan v. Missouri, 152 U.S. 377. (4) A change of venue is not a constitutional right, and it is entirely competent for the legislature to provide the terms upon which a change, if any, shall be granted. State ex rel. v. Wofford, 119 Mo. 381. (5) The writing was competent (Act of 1895, Session Acts 1895, p. 284), as laws which change the rules of evidence relate only to the remedy and are constitutional, although the effect is to render that competent which was before incompetent. State v. Jackson, 80 Mo. 175; Cooley, Const. Lim. [3 Ed.], p. 367; Whart. Crim. Ev., note in sec. 360a.

Division Two: Gantt, J. Burgess, J., concurs; Sherwood, J., dissents. In Banc: Gantt, Macfarlane, Burgess, Robinson and Brace, JJ., concurring, and Barclay, C. J., and Sherwood, J., dissenting.

OPINION

Gantt, J.

At the November term, 1894, of the St. Louis Criminal Court, the defendant was indicted for the murder in the first degree of Joseph M. Cunningham, the sexton of St. Peter's Episcopal church in the city of St. Louis. He was arraigned, tried and convicted of that crime and appealed to this court. The judgment of the criminal court was reversed February 4, 1896. He was again tried and convicted on May 29, 1896. After the usual motions for a new trial and in arrest the cause was again appealed to this court. The opinion of this court on the previous hearing is reported in 132 Mo. 301. The evidence on this last trial was substantially the same as on the first. Whatever changes occurred will be noted, if necessary, in the opinion of the court.

At the time the indictment was found, and of the first trial of the case, the laws of this State only made provision for one judge for the St. Louis Criminal Court. By an act of the General Assembly, approved by the Governor March 26, 1895, the said criminal court was divided into two divisions and provision made for an additional judge for the second division thereof; said act conferring upon each division of said court all the powers and jurisdiction theretofore had and exercised by the said court. By this act Judge Henry L. Edmunds, the then incumbent, remained judge of division number one of said court, and Hon. Thomas B. Harvey was appointed judge of the other division and duly qualified as such. Upon the remanding of this cause it was again docketed in Judge Edmunds' division and was set for trial March 9, 1896. On that day the defendant filed his application for a change of venue, verified by himself and two compurgators as required by statute. In his application he alleged that Judge Edmunds would not give him a fair and impartial trial and would not fairly and impartially pass upon his said application for a change of venue, and that the inhabitants of the city of St. Louis and the county of St. Louis were so prejudiced against him he could not obtain a fair and impartial trial. Judge Edmunds sustained the application so far as it disqualified him from trying the case and transferred the cause to Judge Harvey's division. To which transfer defendant objected, and demanded the election of a special judge. The cause having been transferred, on March 30, 1896, defendant filed his plea to the jurisdiction of said division of the court, which plea was overruled and defendant excepted. Defendant then filed affidavits in support of his application for a change of venue and again objected to the jurisdiction of Judge Harvey on the ground that the act of 1895 creating said division was ex post facto; was unconstitutional and void, which objection was again overruled and exceptions taken and saved. Thereupon Judge Harvey and division number two of said St. Louis Criminal Court heard the evidence for and against said change of venue and denied the same, and exception was duly saved. On April 6 the defendant filed an application for continuance on the ground of an absent witness, one G. M. Lewis, whom defendant believed resided in St. Louis or Denver, Colorado; that he believed he could obtain the testimony of said witness in sixty days; that more than a week prior to April 6 he had issued a subpoena for said Lewis and another on April 4, both of which were returned "not found." This application was overruled and defendant excepted. Upon the application of the State the cause was continued to the next term on account of an absent witness, and the cause set down for May 25, 1896, on which last mentioned day both sides announced ready for trial and the trial proceeded, resulting in a verdict of guilty. Having already passed upon the sufficiency of the indictment, and arraignment on the former appeal, it is not necessary to advert to those subjects again.

I. The act of March 26, 1895, creating two divisions of the St. Louis Criminal Court, giving to each the same jurisdiction which was possessed and exercised by that court prior to that time, and thereby simply increasing the efficiency of said court for the disposition of the rapidly accumulating business therein, was clearly within the powers of the legislature. The State has no higher duty than to furnish courts in which public prosecutions may be heard and speedily terminated. The abolition of courts which have proved to be inefficient and the creation of others, leaving unimpaired all the guarantees of the State and Federal Constitutions, are in no proper sense ex post facto laws. Cooley, Const. Lim. [5 Ed.] 329; State v. Jackson, 105 Mo. 196, 16 S.W. 829; State v. Sullivan, 14 Rich. Law (S. C.), 281; Wales v. Belcher, 3 Pick. (Mass.) 508; Com. v. Phillips, 11 Pick. 28; State v. Moore, 15 Rich. Law (S. C.), 57.

II. It is objected that Judge Edmunds erred in refusing to call in a judge of another circuit to decide the application for change of venue and in transferring the case to Judge Harvey's division of the court. Counsel's attention had probably not been called to the amendment of section 4174, Revised Statutes 1889, by the act of March 18, 1895. Acts 1895, page 163, section 2. By this amendment so much of section 4174, as it stood prior thereto, which required the calling in of another judge to decide an application for change of venue, was repealed. So that Judge Edmunds only had for his consideration an application for change of venue from his court on account of his alleged prejudice. By section 5 of the act of March 26, 1895, he was required to transfer the case to Judge Harvey's division, and he rightly so ordered. No constitutional question was involved in his action in so doing. It was a mere matter of procedure which it was the duty and right of the legislature to prescribe for the disposition of such cases and was in no sense an ex post facto law.

III. Neither was there such error in the refusal of Judge Harvey to grant a change of venue as calls for review by this court. He heard the witnesses and found as a fact that there was no such prejudice on the part of the inhabitants of St. Louis as would prevent a fair and impartial trial of the defendant, and that finding this court will not disturb in the absence of a showing of abuse of discretion. No doubt exists of the power of the State to prescribe the terms and conditions upon which changes of venue may be granted. There is no constitutional right to such a change. The State very wisely requires the prosecution to be had in the county in which the offense is committed, unless the court is satisfied by the evidence that a fair trial can not be had therein.

IV. There was little merit in the application for continuance. No diligence had been shown to obtain the evidence of the witness and ample time intervened to find him in the fifty days which intervened after the court denied the motion and before the date fixed upon for the trial, if such a witness really was in existence. Moreover, when defendant subsequently went to trial without objection, under the circumstances the point was waived.

V. The defendant objected to the evidence of Dr. Sanger, who testified as an expert chemist to an examination of the viscera of the deceased and to the finding of strychnine...