State v. Gleason, 88 Mo. 582

State v. Gleason

88 Mo. 582 | Mo. | 1886

Black, J.

The defendant and others were indicted in the circuit court of St. Louis county for robbery in the first degree. After one mistrial, a severance was ordered, and the venue changed to St. Charles county, but it would seem no order was then made to remove the body of the defendant to that county. A transcript having been filed in the court to which the cause had been removed, the defendant by his attorney appeared there and moved the court to strike the cause from the docket; the motion was overruled. The St. Louis county circuit court, at next term after the venue was changed, ordered the defendant to be delivered to the jailer of St. Charles county, which was done. The cause coming on for hearing in that court, the defendant filed a plea to the jurisdiction and also challenged the array of petit jurors-; the plea and motion were both overruled, and *584defendant refusing to plead, a plea of not guilty was entered, and upon a trial lie was found guilty.

1. Tbe petition, for a change of venue was based upon two grounds, prejudice of the inhabitants of St. Louis county, and prejudice of the inhabitants of the entire nineteenth judicial circuit, of which St. Charles county is also a part. The claim is that the motion was sustained in its entirety, and that, therefore, the St. Charles circuit court acquired no jurisdiction. But this is a misconception of the record. The order recites that there was good cause for granting the motion because of prejudice of the inhabitants of St. Louis county, and then it is adj udged that the motion be sustained and the venue of the cause changed to the county of St. Charles, and the clerk is directed to forward a transcript of the proceedings to the circuit court of that county. The plain and only effect of the order was to sustain the application as to St. Louis county, and to overrule it, as to the entire circuit. How else could the cause have been removed to St. Charles county? The order is not susceptible of any other meaning. The St. Louis county circuit court should have ordered the body of the defendant removed, when the change of venue was awarded. Sec. 1867, R. S. But a failure to then make the order did not deprive that court of the power to thereafter make it. It was the plain duty of the court to direct the sheriff to remove the defendant to the jail of St. Charles county, even at a subsequent term. The St. Charles circuit court had full and complete jurisdiction when the cause was brought on for trial, and the previous irregularities gave the defendant no right to be discharged. ,

2. The objection to the jurors seems to have been that they were not of the standing jurors selected by the'county court. The bill of exceptions concedes that there was no record entry showing that the.regular, jurors for that term had been discharged. It will be' *585taken.as a fact that the court had a panel of regular jurors at that term and that they had not been discharged. Still it does not. appear but they were engaged in the consideration of other causes. The statute with respect to selecting jurors has always been regarded as directory. State v. Pitts, 58 Mo. 556 ; State v. Knight, 81 Mo. 373 ; State v. Ward, 74 Mo. 256. The trial court has a right to order its officers to- bring' in additional jurors, or an entire new panel, as the dispatch of the business may demand.

The judgment is affirmed.

All concur.