96 Mo. 241 | Mo. | 1888
The defendant Edward Anderson, who was indicted with his mother and brother Henry and one Saunders, for killing Swain Anderson, appealed from a conviction of murder in the first degree. The deceased was the father of this defendant.
The indictment was found at the March term, 1887, of the Wright circuit court. At the following August term, the defendant applied for a change of venue,
1. The second indictment was probably presented because of the failure of Judge Bland to hold court at the designated time for the trial of • defendant. But whether for that or some other reason it was entirely competent for the grand jury to present the second one. Sections 1877 to 1881, Revised Statutes, 1879, provide for the election of a special judge, or for calling in the judge of another circuit, for the trial of a particular cause, when an affidavit of prejudice is made against the presiding judge'; but there is nothing in these sections which disqualifies the regular judge from receiving a new indictment. Besides this, the second indictment,
2. The defendant insists, on his plea to the jurisdiction of the Laclede circuit court, that the order of Judge Wallace calling in Judge Bland is void, and hence Judge Bland had no jurisdiction to send the cause to Laclede county or to make any other order in the cause. This contention is based on the ground that the affidavits of prejudice on the part of Judge Wallace were defective. This is a strange position on the part of defendant. He makes affidavit of prejudice against Judge Wallace and procures an order for the trial of the cause by Judge Bland, and then says that order is void because the affidavits filed by himself were defective. Judge Wallace had the jurisdiction to make the order, though the affidavits were defective. No exceptions were taken to the order made, and for this reason, had the order been adverse to the defendant, he could not be heard to complain in this court; but the order was made at his own instance, and he will not be heard to complain because he imposed defective affidavits upon the court.
3. Since it was necessary to proceed with the second indictment, as if it had been an entirely new prosecution, it follows that, in making out the transcript for the Laclede circuit court, it was only necessary to include those proceedings having reference to that indictment. The proceedings had on the first were
4. The defendant’s application for a continuance being overruled in the Laclede circuit court, he there upon filed a petition and affidavits for' another change of venue, alleging prejudice on the part of Judge Bland, which application was overruled, and of this ruling error is assigned. In the recent case of State v. Shipman, 93 Mo. 148, the regular judge was unable to hold a regular term of his court. The attorneys elected a judge to transact the entire business of that term, under section 1107, Revised Statutes, 1879. At the term thus organized the defendant was indicted, and we then held that the judge thus elected would be rendered incompetent to try the particular cause upon the filing of proper affidavits of his prejudice against the defendant. But that ruling was made upon the ground that a judge thus elected under that section tp transact the business of an entire term stood in the shoes of the regular judge in respect of such applications.
In the prior case of State v. Greenwade, 72 Mo. 298, where the defendant made affidavit of prejudice on the part of the judge who had been called in from another circuit to try the particular cause, we held that section 1877 was intended to apply only to the judge before whom the cause originally came. It was then said: “There is nothing in the statute on the subject, but we cannot suppose that the legislature designed to allow a perpetual round of such motions and affidavits by which a trial could be indefinitely postponed, and, therefore, the application before Judge Wright, under section 1877, was the end of such applications.”
Here Judge Bland followed the case to the Laclede circuit court, as he was obliged to do by the express command of section 1881, as amended by the act of 1887 (Acts 1887, p. 168). This section as amended makes no provision for another change of venue because of prejudice or alleged prejudice of the judge. 'This matter is
5. It is next insisted that the confessions of the defendant should have been excluded because made under the fear of mob' violence. The deceased resided two miles from the village of Mountain Grove. He left that place for home between two and three o’clock in the morning, and was shot on the road when within a half mile of his house. Defendant was arrested during the coroner’s inquest, which was held at the village. Sales and Price, as guards, took him away from the building where the inquest was being held, and informed him that Saunders had given him away. Sales at the same time said: “Ed, if you are innocent, stick to it; if guilty, acknowledge it, and it will probably go easier with you.” Defendant said if he made a confession it would implicate others, when Sales said, “thatis right; it is right for them to shoulder some of it.” Defendant then in substance stated that he and Saunders got á loaded gun from a fence corner where they had previously hid it, secreted themselves in the brush, and when the deceased came along, Saunders shot and killed him. Defendant then repeated the statement to the prosecuting attorney, having first stated that he had not been frightened into making the confession. All this took place late in the afternoon, and about or just after dark of the same day defendant and Saunders, whilst under arrest and in the presence of each other, made the same statements to a newspaper reporter, except that each persistently contended that the other fired the fatal shot.
The strongest evidence in favor of the theory of
The court has often given its adherence to the general rule that credit should not be given to confessions which are forced from the defendant by flattery of hope or torture of fear; such confessions must be rejected. State v. Brockman, 46 Mo, 566; State v. Jones, 54 Mo. 478. But mere adjurations to tell the truth furnish no ground for excluding them. State v. Hopkirk, 84 Mo. 278. It is said in a recent edition of Greenleaf: “It seems that in order to exclude a confession the motive of hope or fear must be directly applied by a third person, and must be sufficient, in the judgment of the court, so far to overcome the mind of the prisoner as to render the confession unworthy of credit.” 1 Greenl. Evid. [14 Ed.] sec. 220a.
Now it does not appear that Sales and Price, the guards, used any threats or words of intimidation. Doubtless there was considerable excitement in the community, but there is no certain evidence that any number of persons had combined to do the defendant harm. Rumor, speculation and conjecture of a few persons is the only evidence of the existence of a mob. But be all this as it may, to exclude these confessions it should appear that the defendant made them under the influence of fear, and that is not'disclosed or shown. The evidence of Price, Sales and the prosecuting attorney is, that the statements were made by defendant of his own volition, and that being so, it matters not how much excitement prevailed in the community. These
6. Finally it is urged that the court erred in refusing the defendant a continuance, based on the absence of eight or ten witnesses. The verified application states that defendant expects to prove by James Sells that he was present and heard the confessions made to Sales and Price, the guards ; that these guards and one White, a detective, asked defendant to admit his guilt; that defendant said he had nothing to do with the killing ; that they then told him the mob had assembled, and if he did not make a statement admitting the killing, he would be taken out and hanged and they could not prevent it; that Price said the statement could not be used against him and that it was the only thing that would prevent him from being lynched; and that defendant through fear was forced to confess his guilt.
The affidavits show that this witness lived in Wright county at the date of the homicide ; that he appeared at the fall term of the Wright circuit court pursuant to his recognizance; that soon thereafter and unknown to defendant he left that county; that, in July, 1887, defendant learned for the first time that he was at Kansas City ; that defendant by his attorney wrote him a letter requesting him to make himself known to the sheriff to the end that he might be served with a subpoena ; that the letter had endorsed thereon directions to be returned if not called for in ten days, and it was not returned; that defendant then had a subpoena issued to the sheriff of Jackson county which was returned not served ; that another like process was sent to the sheriff of that county on the third of October, 1887,
It is also stated that three or four of the other absent witnesses, giving their names, resided in Douglas county; that subpoenas had been issued for them on the twenty-second of November, 1887, three of which were returned not served, one had been served and an attachment had been issued for the witness thus served. These witnesses, it is stated, will testify to conversations with Sales and Price in which the latter stated, in effect, that the confessions of the defendant and Saunders were procured by threats of violence. The recital of the above evidence, which is set out in detail in the application, is enough to show that it was material to the defense.
Three of the remaining absent witnesses resided in Wright county, one being temporarily absent and therefore not served. The other two had been served, and an attachment had been issued for one, and the other failed to appear because of the illness of her infant child. These witnesses, it is alleged, would testify that they were intimate with the Anderson family and that there was no unfriendly feeling between the members of that household. This evidence became relevant because of the fact that the state offered evidence to show that there had been for some time a hostile feeling existing between defendant and his mother on the one hand and the deceased on the other.
More diligence might have been used by the defendant to find out at an earlier date the exact place of abode of the witness Sells, but since he had business at and
, No point is made over the instructions, and hence they are not considered. Reversed and remanded.