State v. Hayes

88 Mo. 344 | Mo. | 1885

Sherwood, J.

This cause is here for the second time. The result of the defendant’s first appeal and our rulings then made, are reported in 81 Mo. 574 et seg. The defendant is charged in the indictment with the murder of Philip A. Mueller, and after our reversal of the judgment, has been tried again, the trial resulting in his conviction of and sentence for murder in the first degree, the second trial resulting in the same way as did the first one. This appeal presents but two points for consideration : First. Whether Judge Burton had jurisdiction to try the cause; second, whether section 1902, Revised Statutes, 1879, is a valid law.

I. Relative to the first point:. The defendant, after the judgment of reversal and the cause was sent back for a new trial, withdrew his application for a change of venue, and subsequently filed Ms motion to set aside and vacate the order made by Judge Laughlin, appointing Judge Burton to hear and determine the defendant’s application for a change of venue, and to try and determine the cause. This motion was denied, and properly denied. Section 1881, Revised Statutes, 1879, ■ fully authorized the making of the order which the defendant sought to have set aside.- Judge Burton, by .that order,, being clothed with jurisdiction, retains that jurisdiction until the final determination of the cause. This is what the statute says in express terms, and so it was ruled when this cause was here before. State v. Hayes, supra. It follows, from these premises, that the withdrawal of the defendant’s application for a change of venue did not divest Judge Burton of the jurisdiction with which he became invested in consequence of the order in that behalf previously made.

II. The second point is equally clear. Section 1903 is valid, and not obnoxious to any objections on the score of being unconstitutional. It is not a special law, because it applies to all cities having a population of over one hundred thousand inhabitants ; applies as well to the future as to the present, and in this is plainly distinguishable from the “notary act” discussed in State ex rel. Harris v. Hermann, 75 Mo. 340. Nor does the section in question impinge upon the constitutional rights of the defendant by reason of giving the state the right, in certain localities, of peremptorily challenging a larger number of persons than it possesses in other localities. Such power, on the part of the state, does not, under the very terms of the section, diminish a defendant’s right to the same number of challenges which he possesses alike in cities or in the country. If the section under discussion had deprived a defendant, when tried in a certain locality, of the usual number of peremptory challenges, a different question might have been presented, one not necessary to be now considered. This "Subject of the right of the state and of defendant to peremptory challenges, is fully discussed by a learned author and the cases which he cites. 1 Bishop on Crim. Proc., sec. 940, and cases cited. The views here expressed are in accord with those authorities.

Having discussed the only errors of which complaint is made, and finding them unfounded, it remains but to say that the judgment is affirmed, and to order that the sentence of the law be carried into execution.

All concur.