*1 Hancock, Appellant. J. P. 275. Two, May 25, Division 1928. appellant. Geo. D. Sloan for *2 Gentry,
North T. Attorney-General, G. Whilehill, and Hibbard Special respondent. Assistant Attorney-General, April 1927, Attorney Prosecuting C. On
DAVIS', comprising County filed in an two the circuit court information carry- with in- count counts, in defendant was the first ing possessing danger- weapon, a concealed and in the second deadly weapon intoxicated. On motion the court re- ous quired case, the State State to elect at the close of the State’s electing proceeding count. The stand and the trial the second charged in finding guilty as returned verdict information, assessing punishment at his second count of the years penitentiary, appealing two judg- from the ment entered thereon. part adduced on the evidence the State warrants finding 13, 1927, on March ivas arrested in the town of Ripley County,
Doniphan, street, by while abroad on the a night watchman, jail. being took him who to the On searched, an auto- pistol, fully cartridges, matic loaded with posses- was found in his sion, testifying they and watchman the sheriff did not him see drink, drunk, but that defendant was take ho talked liquor upon coherently, that the odor of ivas his breath, staggered drunk. In and acted his there ivas also found quart pint and a whiskey a full bottle of whiskey, partly filled. appear Other facts will the discussion of the issues raised. .prosecution I. based on Revised Statutes apposite portion which- person reads: “If
carry upon person concealed or about dangerous his a or deadly weapon of description, kind or ... s]iau Aveapon hav-c such in his in- toxicated,” etc. We liaAre proper the record in examined search of and error, conclude that error does not exist therein. AVehave also examined the evidence to determine Avhether the State made a sub- ease, missible but as it is evident from the facts collated that such made, case Avas it would avail to extend the discussion. charges II. Defendant erred in overruling ap- his plications change venue, for a of based on the county. judicially habitants of the AVo Ripley notice that population has a of less than seventy-five thousand in- habitants. 3973, page 206, Laws 1921, applies. perfinent portion thereof reads: in “Provided, all in in counties this which noAV cases liaA'eor hereafter have population seventy-five a of than less if thousand inhabitants such petition change supported by for of Avenueis of five or residing more credible disinterested citizens in neighbor- different county of is pending, hoods where said cause then the court or judge vacation, grant change ill venue, such course, of as of proof . .” Avithout .' additional
Omitting caption, signatures, Aerification prayer and for change July immediately venue, 6, 1927, preceding- trial, the record application a change shows that defendant Aerified for filed a reading: venue, “Noav comes the defendant the above entitled a represents charge cause court that pending and to the there is Ripley County, Missouri, the Circuit Court of him, wherein lie stands carrying the crime of concealed weapons and good that he has reason to believe and does believe that he cannot have fair impartial a and trial of said cause in the said Circuit Court Ripley County, Missouri, because the county are against him.”
Accompanying application were five affidavits of citizens of county, of which, omitting caption, signatures and verification, following serves as an example, reading: Napier P. “L. of law- age ful having duly been upon sworn deposes says his oath and he has seen and read foregoing and application above and af- fidavit of -the P. a defendant, Hancock, J. for of venue and that the facts stated knowledge therein are true his best and be- lief, that- and the said defendant cannot a fair impartial have trial of said cause Ripley the Circuit Court of County, Missouri, for the reasons stated Affiant further states that he is not of kin counsel for the said J. P. Hancock, and that he is a neighborhood credible disinterested citizen of Doniphan, County, Missouri, and a resident thereof.” The four other affidavits follow in foregoing haec verba the affidavit, except each affiant states neighborhood Poynor, resident of Gatewood, Briar Doniphan, Creek 1, Ripley respectively. No. County, Route record foregoing advises the court application. over-ruled the immediately
Thereafter and filed a application second which is venue a substantial duplication therewith, first In connection there supporting affidavit, subscribed and two filed verified which, credible, county, in substance, disinterested citizens of the true, states that the facts in that defendant can- county a fair in said reasons *4 for stated, affiants not kin or counsel defendant. that the ar*e to and application six of accompanjdng second were affidavits Also said signatures caption, omitting and county, which, citizens said of of reading: “J. McManus following example, is an C. the verification says that he has age being duly upon his oath lawful first sworn of foregoing application and affidavit above and read the seen and over change and that J. for a of venue the defendant, Hancock, P. of the fact owing to the was true. That facts therein are stated today the further fact that this and to to .not notified return .court cause; try which to said that there jury with picked-up is a there charged which de- with the crime- against a man a fair defendant cannot have a charged that the and fendant stands Ripley Court of Circuit of said cause trial impartial and that Affiant further states the reasons stated. Missouri, for County, J, Hancock, that P. and he for the of kin he is not to counsel 258 neighborhood
ais credible disinterested citizen of Creek, Briar ’’ Ripley County, Missouri, and a resident thereof. Identical affidavits except of five were filed, they others that show to the affiants be neighborhoods Ponder, Bennett, residents of the Doniphan, Route 1,No. Doniphan, Barkadora, Ripley County, respectively. and This application by a for of venue also overruled the court.
We that have held the affidavits of credible, these five or more dis- legal interested citizens state facts conclusions. It will must and portion be noted that in the 3973, page 206, Laws seventy-five relative counties of to more than thousand prescribes inhabitants, allegations petition the section of the that proved, court, legal be the satisfaction of the and com- petent proviso, seventy- evidence. as to than counties less merely inhabitants, five thousand substitutes the affidavits of the testimony five more citizens for terms in of more ore counties than seventy-five inhabitants, resulting affidavits thousand it that legal present competent the five witnesses must evidence. In words, application a granting other must result from rela- 2 showing probative v. S. Stough, tion of facts force. W. [State (2d) 767; Bradford, v. Mo. S. W. 496.] reading application
A a for of venue advises first good that states more in it than has rea- he believe, and im- son to cannot a fair does believe have county partial are because the support- application him. it. The affidavits second is like unto knowledge ing application merely state to the best the first impartial a fair and affiants, cannot have belief are unable to trial reasons We for the stated supporting ap- application find in the first either or the Legal conclusions plication whatsoever. the statement of fact only purpose insufficient found and such are W. S. Lock, 302 Mo. tended. [State reading supporting the of the affidavits It evident from a is also affiants they de- are insufficient. While application that second reading true, a application are pose in the that the facts stated develops it to state facts. The statement fails with the crime with prejudice against man that there is fair cannot charged, and that he which stands anfi reasons is mere stated, the' which court from de- conclusion, fact is stated legal for no failed words, the statement In other fact. ultimate termine from competent legal evidence *5 its face develop on a fair and could might whether determine trial, jury “that the notified the asserting in While, in today, court further to return to this not fact that there ais try which up jury to cause,” probative picked facts are stated, yet not such facts tend to establish that the minds of the do. of Ripley were so not ground fair trial could be held (See. that 1919) applied for a R. S. of venue. Nj> overruling in error obtained either
III. Defendant further contends that the court erred in over- ruling quash special panel jurors his motion to by selected try case.
the sheriff to The evidence adduced subject on this shows that case was Monday. tried on Qn Saturday upon adjournment, following Monday. instructed to return the However, upon notice that applied for, would be venue the court jurors thereabout, that, informed such as remained likely as it was that a trial had, they return, would not be need in the jurors picked event the was overruled, could be up. eight However, regular jurors panel jurors returned. The picked up Doniphan vicinity. lived in or court, Saturday on the jurors before the such as excused remained thereabout of adjotumment his own motion after of court. being drinking.
Defendant on trial denied drunk or He ad- possession stating mitted the purchased that he it whiskey, had just before his arrest. He of the loaded admitted pistol jail, at the in but it had time of the search stated that been given repair; him to with him that he carried it to deliver to the home, owner, forgotten but he at had was not and that he it; resulting knowledge, and that liad someone loaded it without his unconsciously. was carrying that he it loaded provides
While sum- Revised Statutes moning bystanders jurors disqualified, regular have been court, reason fail as such any excused to attend “Provided, jurors, yet concluding portion section of said reads: necessary if jury panel it shall fill in for the be vacancies its the sheriff trial of one the court in discretion order case qualified per- bystanders a number of to summon from sufficient ’’ to fill vacancies such ease. sons such substitution statutory provision has for the It been held that merely jurors is bystanders regular or alternate the absence regular or alter- directory m lieu of bystanders use of and that the defend- error, develops it jurors unless does not constitute nate Wheeler, way. prejudiced has been some [State ant resulting here. perceive We are unable *6 There is us any juror before to show the partiality part unfairness of them. IY. complained The other errors of in motion for a new properly us, assignments are not before because the suf ficiently specific. Standifer, 1925; State v. Laws [Sec. p. 856; Murrell, 289 W. State v. S. Eigbee judgment Eenwood, GC., affirmed. is concur.
PER C., foregoing opinion Davis, adopted CURIAM: —The All opinion judges as the concur. the court. Rogers, Appellant. S. W. 250.
The State Preston Two, May 25, Division 1928.