252 Mo. 83 | Mo. | 1913
Defendant was tried in the circuit court of Texas county on the charge of assault with intent to Mil. He was convicted and his punishment assessed at ten years’ imprisonment in the penitentiary. Erom the sentence imposed, after the usual motions for a new trial and in arrest, he has appealed.
The information, which was attacked, both by a motion to quash and a plea in abatement, and the contents of which therefore become pertinent, is, omitting caption, as follows:
George H. Scott, prosecuting attorney -within and for the county of Texas, and State, of Missouri, informs the court upon his oath of office that on or about the 24th day of December, 1910, at and in the county of Texas, in the State of Missouri, one James Anderson, then and there in and upon one Novella Anderson then and there being feloniously, on purpose and of his malice aforethought, did make an assault and did then and there feloniously, on purpose and of his malice aforethought, shoot and wound her, the said Novella Anderson, with a certain shotgun then and there loaded with gunpowder and leaden balls, which shotgun he the said James Anderson in his hands then and there had and held, with the intent then and there her, the said Novella, Anderson, feloniously, on purpose and of his malice aforethought then and there to kill and murder against the peace and dignity of the State.
*88 And tlie prosecuting attorney aforesaid for other and further complaint upon his oath of office informs the court that on or about the 24th day of December, 1910, at and in the county of Texas, and State of Missouri, one James Anderson, in and upon one Novella Anderson, then and there being, unlawfully, feloniously, on purpose and of his malice aforethought, did make an assault and with a deadly and dangerous weapon, to-wit, a shotgun, then and there loaded with gunpowder and leaden balls, which he, the said James Anderson, in both of his hands then and there had .and held at and against her,' the said Novella Anderson, then and there unlawfully, feloniously, on purpose and of his malice aforethought, did shoot off and discharge and with the shotgun aforesaid and the leaden balls aforesaid, then and there unlawfully, feloniously, on purpose and of his malice aforethought, did shoot and strike her, the said Novella Anderson, in and upon the left arm of her the said Novella Anderson, giving to her, the said Novella Anderson, then and there with the dangerous and deadly weapon aforesaid, to-wit, the shotgun aforesaid and gunpowder and leaden balls aforesaid, in and upon the left arm of her, the said Novella Anderson, a certain wound of the breadth of three inches and of the depth of three inches, of which wound the said left arm of said Novella Anderson is wholly and permanently disabled, with the intent then and there her, the said Novella Anderson, on purpose and of his malice aforethought to kill and murder, against the peace and dignity of the State. George H. Scott,
Prosecuting Attorney.
George H. Scott, prosecuting attorney, being sworn, upon his oath states that the facts stated in the foregoing information are true according to' his best information and belief.
George H. Scott.
Subscribed and sworn to before me this 4th day of March, 1911.
Joe C. Stites,
Circuit Clerk.
Briefly stated tlie grounds urged in the motion to ■quash were (a) that the information was duplicitous and that two separate and distinct offenses were thereby charged, to-wit, assault with intent to kill and mayhem; (b) that the information is vague, indefinite and uncertain and does not fully inform the defendant of the charge preferred against .him, and against which he is required to plead and defend himself; and (c) that the offense charged in the information is a sepa
Defendant also, as above forecast, attached the information by plea in abatement, which plea was bottomed upon the averred objections, in substance, (a) that no preliminary examination before a justice of the peace was accorded defendant before the'- filing against him of the information herein; (b) that the information was not based upon the affidavit of any witness having personal knowledge of the facts stated therein, and (c) that the prosecuting attorney has no authority to institute a prosecution for a felony by information when the grand jury is in session, or when a grand jury has been summoned and will shortly be in session. This plea was, also, by the court overruled, and defendant duly saved his exceptions to the action of the court in such behalf.
The facts as shown by the record touching this plea in abatement are that a complaint was filed by one G-. T. Mires, who was the father of the person alleged to have been the victim of the assault charged. This witness had no personal knowledge of the assault, except that he came to the scene of the shooting, saw the condition of his daughter, and some four weeks thereafter, no one else acting, he filed a complaint before a justice of the peace. This complaint is full and formal. If any objection can be urged against it it may be said to be too full. It charges an assault with intent to kill with a felonious intent, closing, however, with these words: “With the intent then and there, her the said Novella Anderson on purpose and of his malice aforethought, to- main [sic] and kill and murder, against the peace and dignity of' the State.” Upon the docket of the justice of the peace it is stated that defendant was by said complaint charged with mayhem.- A preliminary hearing was,
Upon tbis state of facts several of tbe contentions made by defendant for a reversal are predicated.
It is also urged by defendant that bis application for a change of venue should have been granted. Tbis application was based upon tbe prejudice of tbe minds of tbe inhabitants of Texas county against defendant; it was verified by tbe statutory number of compurga-tors and was timely made and in all ways formal. A bearing was bad by tbe court and numerous witnesses were called by defendant. These witnesses, some two dozen or more in number, came, as defendant avers, from all parts of Texas county. But one witness was called by tbe State. Tbis witness was the assessor of Texas county, one U. T. Mires, who was tbe father of the woman alleged to have been shot. His testimony consisted largely in a denial that be bad stirred up public opinion against defendant while on bis rounds through tbe county attending to bis official duties.
Tbe testimony, when fairly reviewed, indicates that immediately after the occurrence of tbe shooting, which took place on December 24, 1910, some feeling bad existed. Tbe facts of tbe shooting, or tbe alleged facts thereof, were printed in tbe various newspapers of Texas county, and through these newspaper articles, and from conversations and rumors over tbe telephone, tbe news of tbe shooting very quickly obtained wide notoriety. Tbe witnesses were unanimous in saying that tbe talk about which they testified and tbe feeling wbicb they said formerly existed, came wholly,
As a fair example of the testimony of all of these witnesses, excerpts from the testimony of a number of them as fairly illustrating the condition of matters, is appended:
The witness Volmer, who was a newspaper editor, says that at the time of the shooting there was some little talk of a mob, but that the feeling against the defendant seemed to have “died down” completely.
The witness Lyles, who was also a newspaper man, says that at the time of the shooting “a great many did not express any opinion, but all who did express an opinion to me said he was guilty.” This witness further says that he had heard talk since this court began, but that “no feeling was expressed against defendant, nothing of the kind.”
Witness Hofrath, who also seems to have been a newspaper man, says that at the time the offense happened most of the people considered the defendant guilty; that he had not heard it discussed since he had been here at court;'that there was no expression of violence against him; that he did not believe the reports and rumors would have any weight with him in the trial, and that he had heard perhaps twenty-five or thirty men out of some three hundred voters in his neighborhood express themselves.
The witness Curran testified that from what the people saw in the papers they thought defendant was guilty. That he had talked to some twenty voters out of 165; that these men expressed no feeling and talked of no mob violence; that they just thought he was guilty; that he had heard no one say that defendant could not have a fair trial.
Witness Turner said in substance that the people in Dade township talked about the matter a little bit; that he never heard very much talk about it; that since he had been attending court he had heard but one man mention it, and that this man had only said that if defendant was guilty “he ought to be nibbled to death by young ducks.”
We have not attempted to give the exact language of these witnesses, only the fair substance of what they said, but the above excerpts are fair samples of what all the witnesses called by defendant said.
The prosecuting witness, Novella Anderson, was the wife of defendant James Anderson, having been married to him some twelve years before the shooting, and at the time thereof they were living together on a little farm some three miles north of Success, a small hamlet in the northwest part of Texas county. On the morning of December 24, 1910, while Novella An
Upon the trial the wife of defendant, who was the assaulted person, was offered as a witness; defendant objected and was permitted, at his request, by the court, to ask certain qualifying questions, which ■questions developed the fact that the prosecuting witness then on the stand was the lawful wife of defendant and had been married to him twelve years. Upon being asked whether she desired to prosecute and testify against her husband, she answered unequivocally that she did.
No testimony whatever as to the facts of the shooting was offered by defendant; nor did he even take the
Upon the trial one Gladys Anderson, the daughter of defendant, as also the daughter of the prosecuting witness, was offered by the State. The defendant objected on account of her youth. The proof showed that she was ten years of age; that she became ten years of age on the 17th of August preceding; that she went to school, attended church and Sunday school and upon her voir dire examination stated that she knew it would be wrong to tell in her testimony that which was not true, and that the oath she had taken in effect obligated her to tell the truth.
As a result of the shooting and wounding the prosecuting witness lay at the point of death for many days and was compelled to have her left arm amputated.
The above statement of facts we deem sufficient to make clear the points urged by defendant.
I. The first count of the information, the same being the one upon which defendant was convicted,
■ The defendant contends that the information in this case was bad when attacked by his plea in abatement, which plea he avers should have been sustained, for the reason that the record shows that this information is based-upon the affidavit of G. T. Mires, who it
An' examination of the first count of the information upon which the case .was tried (the second count having been before trial dismissed), discloses that this is an error. The record does show that a complaint as a Jgasis for a preliminary hearing was issued by the justice of the peace, which complaint was made by said Mires, but the record also shows that the information was upon the oath of office of the prosecuting attorney, and that in addition to being filed under his oath of office, there was appended thereto his affidavit. Under the statute this is all that was necessary. This is one of the three methods of verification of informations permitted by law and we hold that all was done that the law requires to be done. [Sec. 5057, R. S. 1909; State v. Bonner, 178 Mo. 424; State v. Lawhorn, 250 Mo. 293.]
II. -It is insisted by defendant that he was entitled to a preliminary hearing and that no preliminary
We hold, first, that the defendant was duly accorded, under the facts here, a preliminary hearing; and, second, that he was not entitled to a preliminary hearing in this case as a matter of law, and therefore for both or either of the two reasons we are constrained to disallow this point. '
III. Defendant complains that since the grand jury had been called for March 6, 1911, and since the
It is also contended that the witness' Gladys Anderson, who had attained the age of ten years, some
At common law an infant over the age of fourteen years was presumed to have sufficient intelligence, discretion and understanding to testify as a witness, but if under that age no such presumption was indulged (1 G-reenleaf on Ev. (16 Ed.), sec. 367); and he who offered a witness under fourteen years of age had put upon him the burden of proving capacity and therefore competency, before such witness was allowed to testify. It is reasonably clear that the effect of our statute (Sec. 6362, R.'S. 1909) is by strong implication at least to lower the age of presumed capacity and competency from fourteen years as at common law, to ten years, leaving the common law rule in force as to those under ten years of age. For the statute says: “The following persons shall be incompetent to testify ... a child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” [State v. Brown, 209 Mo. 413.]
It is also urged that the court erred in permitting witnesses to testify as to a shooting both Avith a shot-
V. Defendant strenuously complains that the court erred in refusing to grant him a change of venue
We have set out some of the testimony adduced by the defendant upon his application, and have gone over the record with much pains. The testimony shown is as fair an example of what all of the witnesses testified as we have been able to obtain from the record.
Reverting to the well-settled canons of decision as the basis for a logical discussion of the point involved, we find that the matter of granting a change of venue is bottomed upon the sound discretion of the trial judge. It is only when the trial court plainly and palpably violates this discretion to such an extent as to preclude to a defendant a fair trial, that this court will interfere. [State v. Atchley, 186 Mo. 174; State v. Wisdom, 84 Mo. 177; State v. Burgess, 78 Mo.
The excerpts which we quote in our statement of this case show that at the immediate time of the commission of' this offense there was considerable feeling against defendant and some little talk in a few neighborhoods of mob violence; and the record discloses that this condition of the public mind was brought about by reading the newspaper reports of defendant’s most heinous offense. The case was tried eleven months after the offense was committed, and the wit-' nesses are practically unanimous in saying that whatever excitement and feeling had existed immediately following the crime, had completely died down. The witnesses who were examined upon this application were also practically unanimous in saying that while they were induced by the newspaper reports and-by conversations over the telephone to believe in the guilt of the defendant, yet their feelings were such as that they would consider the case, if they were jurors, upon the evidence and would decide it from the evidence offered and not from the rumors and reports they had heard. So far as the record discloses no difficulty whatever was experienced in obtaining a jury. No objections were made or saved, to the jury as a whole or to any juror, and if a single member of the venire called for the trial of this case disqualified himself, or was objected to on account of bias or prejudice, the record is absolutely silent about it. It is the misfortune of the defendant, if the'heinousness of his offense and the absolute certainty of his guilt, which he himself does not deny, extenuate or excuse, produced for a time a strong sentiment and feeling against him. It is likely, and extremely probable, that immediately following the commission of this crime, public feeling in Texas county where ■ defendant was tried was such' as to prevent his having a fair trial. But it is fairly clear from the record that this feeling had died down;
The facts in this case are to be distinguished from the facts in the case of State v. Goddard, 146 Mo. 177. While in the instant case the State offered no countervailing testimony, yet the cross-examination of the witnesses offered by the defendant showed such a condition of facts as to take it out of the rule enunciated in the Goddard case, and the further fact materially aids that in the instant case no defense whatever beyond the fact of previous good character, is offered by the defendant. Upon the trial he offers neither denial nor excuse. Upon such a state of facts, in addition to our opinion that upon the proof the learned trial judge did not abuse his discretion, we are aided in reaching this conclusion by the view that defendant was in no wise harmed by the refusal of his application, and we therefore rule this point against him.
We have gone over all points raised by learned counsel for defendant. We have examined the record