227 S.W. 1078 | Mo. Ct. App. | 1921
This is an appeal from a judgment of conviction rendered in the circuit court of Laclede county at the October Term thereof, 1919. No point is made concerning the sufficiency of the indictment, the admissibility of testimony offered by the State, none being offered by defendant, the instructions given and the form of the judgment entered, and an examination of same makes it apparent that they conform to the practice in such cases.
There are three questions raised on this appeal striking at the validity of the judgment. First, that the circuit court of Laclede county lost jurisdiction of the case on account of an attempted change of venue to Camden County. Second, that the defendant was a registered druggist and was required by a subpoena issued by the grand jury which indicted him, to bring before it, while investigating his conduct, his prescriptions covering the sale of intoxicating liquors. Third, that under sections 5247, 5248 and 5249, Revised Statutes of 1909 defendant was entitled to a discharge, it being claimed that the record shows that he was not brought to trial within the time provided by such sections, and that the delay did not happen on his application nor was it occasioned by want of time to try the cause.
Considering these matters in inverse order, we must hold that defendant's contention that he was entitled to a discharge for failure of the State to bring him to trial in proper time must be overruled. The indictment was found at the May Term, 1916, of the Laclede Circuit Court and by the terms of the statute the term of court at which the indictment is found is not to be counted. [Secs. 5246, 5247, R.S. 1909; Robertson v. State,
The defendant filed his motion to be discharged at this May adjourned term, 1918, and it is the overruling of this motion of which defendant now complains. This motion, however, was properly overruled at that time, since while it was filed at the fourth term after the indictment was found, excluding the term at which defendant took the change of venue and the term at which defendant the case was pending in Camden County, yet the State was ready for trial and did bring the defendant to trial at that term. Any delay incident to the taking of the change of venue by defendant cannot be changed to the plaintiff. [State v. Cox,
It is true that after the mistrial at the May Term, 1918, the case was continued from term to term till the October term, 1919, at which defendant was tried and convicted, from which he now appeals. Defendant did not, however, again ask for his discharge and one continuance was granted on his application. Even if entitled to a discharge because of the failure of the court to bring a defendant to trial under the statutory provisions mentioned, such defendant must apply for his discharge at a time when he is entitled to same. [State v. Cox,
It is apparent, also, that the question of the failure of the trial court to discharge a person when entitled thereto under the statutory provisions above mentioned is a matter of exception and to be reviewable by this court must be properly preserved by bill exceptions. This *345
has not been done. No bill of exceptions was filed till after defendant's trial and conviction at the October Term, 1919. The error complained of is the overruling by the court of defendant's motion to be discharged, which was filed and overruled at the May Term, 1918. No term bill of exception was then filed. The defendant has attempted to have the bill of exceptions which was filed at the October Term, 1919, or rather in pursuance of an order made at that time, relate back and cover matters done and excepted to a previous term of court. This cannot be done unless such matters are preserved by a term bill of exceptions. [State v. Larow,
What we have just said also disposes of the alleged error in overruling defendant's motion to abate the indictment on the ground that by causing him to produce before the grand jury the prescriptions compounded by him as a druggist calling for intoxicating liquors, he was compelled to give evidence against himself. The motion to abate on this ground was filed and heard at the May Term, 1918, and no term bill of exceptions was filed. Under the cases cited the bill of exceptions filed at a later term does not preserve for review matters of exception occurring at such previous term. We are not to be understood, however, as intimating that when the defendant complied with section 5777, Revised Statutes of 1909, in producing before a grand jury the prescriptions compounded by him he becomes immune from prosecution on an indictment found by such grand jury. [State v. Davis,
Nor do we think the circuit court of Laclede county was deprived of jurisdiction of this case by reason of the attempted change of venue to Camden County. The defendant's application for change of venue was leveled at the Judge of such court only and no change of venue *346
to another county or circuit was required. [Sections 5198, 5199, 5200, R.S. of 1909.] The order granting the change of venue to Camden County was made on defendant's stipulation. When an order for a change of of venue is granted in a criminal case to a county in another circuit, as was done here, it is provided by section 5187, Revised Statutes of 1909, that if defendant is out on bail such order shall be void unless a recognizance to appear in another county be entered into. Defendant did not give any such recognizance, and on his motion the cause was stricken from the docket of the Camden County Circuit Court, and the papers returned to the Laclede Circuit Court. This we think was proper, as the venue of the case remained in Laclede County. [State v. Warner,