*1 Kenyon, Appellant Robert The State . 126 February 21, Two, 1939.* Division 1938, August 17, 1938; May Term, Opinion filed at motion *NOTE: 20, 1938; filed; rehearing motion overruled December to transfer filed; September Term, February motion overruled at Court en Banc 21, 1939. *3 Burroughs appellant. N. J. *4 , Burke, General, Attorney W. J. Assistant
Roy McKittrich General, respondent. Attorney for
ELLISON, J . The appellant, twenty age, years of was convicted degree, murder in penalty being the first the death inflicted jury, Oregon change the Circuit Court of County on of venue from Howell County, shooting killing Dr. J. B. Davis C. kidnaping while him in the latter county 1937. There January assignments were five error his motion for cir- new trial in the court, cuit only two of enough which are specific comply with the new trial statute, Section Bevised (Mo. Statutes 1929 Stat. Ann., p. 3275). One challenges of these sufficiency evi- dence; the complains other reception of testimony from a wit- ness who had remained in the court room during hearing after the rule had been enforced. Assignment court, of Errors in'appellant’s brief filed complains of several assigned errors not in the some being charged of these apparent to be on the face of the record *5 (1) proper: that the information was fatally defective; (2) the record fails show jury Were kept together in to. custody during a sheriff day second the trial; and when they returned verdict; (3) their appear does not from the record that the the State day; (4) trial on at present giving in committed (5) that error prove-the-venue; to was. failed two instructions. physician ."Willow Davis, practicing deceased, was a Dr. thirty- along He had .been married Missouri,-well, in life.
Springs, his city B. of that- to years. He seen F. Thomas leave -was six o’clock, January about five office on the afternoon of From- appellant. girl, His Miss away walk office Geraldine with saying from mell, departed he office- testified -that that hour about returned, his-sisters, few going a minutes he was to see but. that, a emergency home of reported had make an call country. get She him man named James six miles in the saw about -latter., parked. medical kit from and leave the his his automobile corpse his found a week later. disappeared until Thereafter doctor, passed meantime from the to- wife a ransom note his through post day, West office on the of the next evening Plains January 27; his medical kit in North "Fork Creek was found County January 30, Ozark .on a ransom addressed second note Mrs. deposited Davis was U. S. Mail box letter outside the post Plains, door West twenty office about miles from' Willow in. p. Spring's, sometime between 8. February M. on next morn- and the ing. Agent A Special Investigation Bureau saw a the Federal man answering appellant’s a general-description* up drive in- alone 1937 Ford 437,154, sedan or coach with plate Missouri license No. p. deposit something-in- night that mail at 8 box :05 onm. gave Sargeants mentioned. Mr. Thomas Massey and Beach of the Highway description, Patrol a man leave seen he had with Dr. Davis on of January They appel- afternoon arrested lant father, at the home of his Kenyon, Daniel He February 2. had .25 pistol caliber Colt’s automatic contained suit case his a tablet of writing paper. His- automobile was 1937 Ford bear- No, with, ing 437,154, license .corresponding, up -to' drive that seen , the West Plains post office. prolonged
After questioning about four o morning ’clock in the of February 3 the appellant. conducted Col. Casteel and other mem- bers State Plighway Patrol, agents, and Federal ato point on Highway 63 about south of body Pomona two..miles where the Dr. Davis was lying found in the woods a pond, down, near face glasses frozen the ground, on the nose undisturbed, right arm glove' extended with a akimbo on. the-hand, the left arm doubled un- der body check book in the His hand. hat was ground twenty about away, feet overcoat on. There were two bullet together wounds .close almost directly the back head not penetrate skull.-cavity; which.did three wounds entrance in the back and three exit front, wounds of the torso. ofAll *6 or through body. passed, oí them through Two went clear
these skin abrasions There were instantly fatal. the heart near and were aby bullet. finger right made hand middle on the thumb and high waist at Two bullets about for six bullets. This accounted re- were penetrated the underwear and body had not of the front into been shot which had later found Another bullet was covered. bullets glove right hand. These three on the and remained through the fired miscroscopieally compared with test bullets were arrest, opin- and in the at of his the time pistol taken from expert Federal Bu- from the Tamm, a ion of Mr. Guinn ballistics Washington, had shot from Investigation at been reau firearm. same was com- was written on which first ransom note paper questioned from Miller, documents
pared by M. examiner Dr. F. writing Investigation, paper of the with the the Federal Bureau they arrested, bag when was found in hand he and appellant’s tablet handwriting indentations proved addition to be similar. certain position correspond in and with impressions tablet form on the note, written page words on the ransom which was last 'of envelope in which Dr. Davis. written address on the Also the the note mailed, handwriting of second ransom note was and analyzed itself, samples expert compared were and this with appellant’s handwriting. opinion expert In the all were writ- ten same hand. finding corpse appellant’s
After of Dr. Davis’ arrest and jail February County he taken Jackson and to the City 6 made February Kansas and there time. On he confined Agents. an oral confession to and certain Federal Colonel Casteel to February signed confession, On written in which he he stated contemplated kidnaping had Dr. Davis for weeks. On about two evening January 26, 1937, grocery he went store Willow Springs inquired con- and where doctor’s officewas. Thence the continues, fession so far as need be here: detailed “I obtained information Dr. Davis' directly there and went office I Dr. where met Davis at the my door. I told him wife my sick. He asked me what I him name was and it was James. told He get bag*. High- returned his office to I told him I lived on way No. 63 Pomona, near Missouri. came He out the office with bag I told him had my his. I car and would drive him p. bring him dark, This back. I before around 5:00 drove m. Highway down No. Springs, Missouri, 63 from Willow to North Road, Dora we turned off where towards Dora. we ten Highway
“When were about or twelve miles off No. I stopped gun pulled my changed the car. I I places him, making car, the doctor stopped drive while we at this time sister’s, . . . my obtained writing pad, which I had pulled I I remember first ransom note. do write the made Dr. Davis note,, do I remember but exactly what was said Saturday paid $5,000.00 had to pay ransom of 30, 1937. I *7 not tell the doctor January did night which would be I him The doctor wrote pay. wanted to what denominations of bills money wanted, in- type in note included the note and $5,000.00 cluding I from $1,000.00 bills. All wanted was the four to whether I had searched the doctor see or not previously the doctor. not satisfying' myself him he did gun he had a on after and Plains, gun, a we around and came back West Mis- turned to driving' square, I mailed this ransom note souri, public on the where to the wife of Dr. Davis. pub- a myself, dropping
“I mailed it in mail on this note box square go lic me while the was with and did not to the Pbst doctor talking car. my Office. The doctor did not do much while in he was town, driving mailing After this first left ransom note we on miles, Dora eighteen Road fifteen as near as I can about recall. stopped bridge We a Road, on near on Dora which is located Creek, North Fork I told kit doctor throw his to medicine creek, which he did. We then drove on the Road to Dora Highway No. 14 driving and after more around went back to we Highway No. 63. We went on No. 63 side Highway to the North Olden, Missouri. stopped
“We highway pond a near and I fold the doctor get to out of the car we went in the brush I where was to have him write ransom notes. He more took his check book out of his pocket-and wanted me to a him $5,000.00 write for check loose, to turn I which accept. kept refused to He talking get me trying to to me accept to check, but I piece would had not do it. I of paper pencil and a I him put wanted his check away book and write sitting more ransome notes. ground I was on the standing and he was up. He a jump made for and I emptied my me had to shoot him. I gun into him. I believe the clip pistol full, and, was so, if be would six shells happened, in it. This as near as I judg'e, can about an hour I picked after the doctor up Springs, Willow Mis- souri. . . . “I wish to state this time that there was no taken my one into
n confidence matter; this there was no one with me when I kidnaped the doctor and killed pond him near the on Highway No: body where his found; that, furthermore, I did not take any money from his person him, after I had shot nor did I take watch. I that, also wish to state there was such person no as Nighthawk connected in this case with me just thought and that I of that name questioned when I in Willow Springs, Missouri, officers and believed that that would best story to tell. killing .intention of had kidnaped “At I no time doctor I. I believed only
him him was my killing reason for when, did and. when he for me jump going to attack he made me emptied my gun I in him. not did appeal -the representing Counsel motion concedes trial below. He participate the. enough errors cover several specific not and broad new trial here trial. brief tbe bis during thinks were committed which fie by the assigned any are covered errors he has which was not except possibly that there sufficient Assignments brief abandoned in the support of error the verdict. Mason, 339 Mo. ordinarily as will be treated waived. [State record, "and since this But view assignments gratia valid case, consider both the capital w.e shall ex far so made in the brief as the -motion for new trial those . cognizable. sup I. that the evidence insufficient contention *8 clearly On facts made port the verdict is untenable. the might appellant’s confes perfect called case.. The what almost a. eyewitnesses physical from sion checks facts and the time with corpse found Dr. lured from office until the away Davis was his mortal the woods week later. The ballistics evidence shows the a testimony appellant’s pistol. were inflicted with The wounds the handwriting expert ransom shows the doctor wrote the first appellant present a appellant The could not note and the second. - testify presence witness, He did not nor was his real defense. as .a evi .Practically accounted at the time of homicide. all attempted other introduced in his behalf to show there dence were mysterious might at time community characters who kidnaping perpetrated homicide; appellant and that the mentality. Indeed, .counsel, weak-willed and of admits low but .his appellant brief killed Dr. Davis. this, point really The head is that fails made under the evidence degree murder; glanc- superficial, establish a case ing nature of the appel- bullet wounds in skull corroborates the lunged lant’s confession said where he that Dr. at while Davis him (appellant) sitting ground he on and he to shoot him. “had ’’ emptied gun my I ap- into him. fact Also the is stressed that the he pellant killing said in his confession had no intention of Dr. Davis kidnaped him, only .when he so when he doctor did believed the going This, attack argues, negatives him. counsel delibera- degree tion, an essential element in first murder. Here, appellant, by- own his admission was in the act a, kidnaping to perpetrating ransom, capital a extort felony un (Mo. 4020, 1929 Ann., 2827). der Section Revised Statutes Stat. p.
1177 In such him. appellant The victim resisted and the shot and killed R. C. circumstances will self-defense. not be heard to claim [13 0 King, 127, p. 823; J., 215, 49; 342 Mo. L., p. sec. 3 sec. State v. C. 1067, (2d) 119 S. And while it that “where W. is true killing by'the weapon upon deadly State’s evidence a of a shows use part body, nothing appearing, vital else murder the second degree, situation, presumed,’’ from necessities of the will be Malone, (2d) 786, yet 790; State v. Mo. S. W. showing
is substantial case the crime was evidence'in this murder degree. Corpus Juris, in the first in 30 page As section premeditation “the deliberation for this which essential ’’ purpose may killing. be inferred from the This circumstances of the : long (Mo. has been the law Missouri State v. Div. McCracken 2) Cade, (5); S. State v. Mo. 82,83; Simon, 336, 344, 34 S. (2d)W. State v. 317 Mo. 295 S. W. 1076, 1079; Lucas, 904, 912, 714, 716; State v. 316 Mo. Walker, 646, 651; Talbott, 9 W. State v.
The body evidence in this case shows the Davis was found Dr. lying down, face eye glasses resting undisturbed, with his his nose on, right overcoat extending arm glove akimbo with hand, body left arm doubled under the cheek book hand, lying away. and the twenty hat feet The head wounds body wounds, bullets, made all entered five from the back ¡ w'ound¡s instantaneously passed horizontally two fatal almost through Only right the chest. one' wound in hand could (cid:127) direction; possibly have been any fired from other tes- tified that emptied into pistol jumped when doctor the latter him sitting while he was on the -ground. foregoing circum- stances Furthermore, belie his statement. considering Dr. Davis’ *9 age and the fact that submissively permitted he had appellant the to drive him city into the of West Plains when the first ransom note mailed, was extremely improbable is would have he started n to attack appellant, younger man, a much alone in the woods when the latter had, was armed. if And could appel- how lant have him shot five jury might times in the back ? The well found murder was committed while offering victim pay $5000 his by check, appellant’s ransom statement-says did, as appellant and while the was behind jus- him. evidence amply The tified guilty a verdict of degree. of murder in the specific assignment next The motion trial that the court admitting the testimony Dwight of witness erred Brantley, because he remained in the courtroom after the rule had been enforced'and the witnesses ordered excluded. Mr. Brantley agent special charge of City the Kansas Division of the Federal concerned main testimony Investigation.
Bureau His arr the latter’s after questioning Springs at Willow appellant of the in this anything find body. rest, and the We do finding of the enforced. excluding witnesses showing record the rule trial there- new motion for in the unverified effect statement 83 S. Jackson, is of no force. fore [State tes- witness Furthermore, when the (2d) 87, L.A. R. 339.] For exception saved. objection ground, or made on that tified no nothing for review. presents assignment also this reason [State Jackson, supra.] assignments motion new only for foregoing are the the other say, however, that We will trial entitled consideration. that no^substantial were of such nature assignments in brief, them. ignoring violated right information, be inveighs against set out appellant’s counsel italics, ours. paragraphing and are parentheses low. The Attorney and (1) Prosecuting D. within Roberts, “Wm. informs Court County Missouri, Howell and State - D. January, A. Kenyon, day on about the one Robert Missouri, then County of Howell and State did and at the said feloniously, Davis, being upon J. B. then and there and one C. there malice willfully, deliberately, premeditatedly, purpose and of his on assault, did make an aforethought,
(2) dangerous weapon, and cer- deadly “and with a to-wit: a pistol, then and bul- gunpowder tain and loaded with metal there he, Kenyon, lets, which Robert hands then and there said in his held, Davis, against him, had and and B. then and said J. C. feloniously, purpose aforethought, there on and of will- malice his deliberately, fully, premeditatedly discharge, and and did off shoot aforesaid, (3) pistol gunpowder “and and metal and aforesaid, feloniously, purpose bullets and there then and his aforethought, willfully, malice and deliberately, did premeditatedly, shoot, strike, him, penetrate B. Davis, wound the said J. C. in and and body him, upon Davis, head J. B. giving said C. Davis, dangerous him said J. C. B. then there with deadly weapon, to-wit, pistol gunpowder aforesaid, him, metal aforesaid, upon bullets in and body the head Davis, wound, B. the said J. C. mortal one of which mortal wound said J. B. said C. Davis then and instantly died. “And Roberts, so D. Prosecuting Attorney the said Wm. (4) aforesaid, upon aforesaid, official oath say he, doth the said Kenyon, Robert B. Davis, him the J. C. in the manner and by aforesaid, feloniously, the means premeditatedly, deliberately, *10 aforethought and of his malice purpose County at the said of Howell Missouri, said-day State of January, and of A. D.
1179 cases in such form the statute contrary of murder; kill to did and State.” of dignity and against peace and provided made and information paragraph What we shown as the second in- allegations appear an though the same obscure, a. may little 185, 187, 195, 164 Conley, 255 Mo. approved in State formation with the in connection paragraph But the third County Howell charges that sufficiently others January, the'-day Missouri, on or about in the State and deliberately, premeditatedly, purpose willfully, feloniously, upon the head Davis, in B. and aforethought, shot J. C. of his malice inflicting thereby then and body pistol, a loaded body head and of which wound his said upon a mortal wound sufficient, especially in the ab- This was instantly died. Davis the trial. upon information at any attack sence charges brief information is Appellant’s counsel his it of these are fatally respects. The first three defective five inflicted; charge: feloniously fails the mortal wound was feloniously; or that deceased or that homicidal act was done Birks, point pistol. killed of the On this means Woodward, 263, 271-2, 578, 580; Mo. 97 S. W. Mo. State v.
625-631, are 92-94; 90 S. W. cases referred therein and other allege enough not shoot cited. The AVoodwardcase holds it is ing feloniously; the must perpetrated or other assault was indictment mortal charge act, e., further the homicidal i. the infliction wound, where, felonious. But the decision further. holds here, shooting as averment of a felonious is connected words “then there” averment of fatal wound with a further ing, charge it is sufficient. And Birks holds that while the case giving” shooting “thereby must be followed the words wound, import, deceased a fatal ruled words of similar it was Ballance, 60, 63, State v. that the Mo. S. W. words “giving him,” deceased, gunpowder pistol, with the “aforesaid,” upon designated leaden balls part in and of the body wound,” “one mortal also, were sufficient. v. Rob [See, ertson, 496, 507, 528, 531, Linn, State v. good as We hold the information
against assignments. these assignments allege The other two are that information fails to appellant’s connection with the shooting killing de ; fails ceased and to describe the location and character the mortal wound, duplicitously charges but the deceased received one mortal on the body saying wound head and without which one caused Taking point first, death. the second the indictment or information upon need describe the wound particular or state what part of body inflicted; it and it will not be fatally defective if al *11 1180 Edmund body. v.
leges of parts mortal wound two the one [State 136-7; v. Bron son, 398; Ramsey, 133, 82 State Mo. Mo. 512, stine, 320, 530, 49 S. W. Mo. appellant connect the The information fails point, that the True, killing deceased, information with the of the is mere cavil. the alleges pis long, appellant the had the paragraph but second the against discharged The third hands it the deceased. tol saying the paragraph by (it continues carries over sub “shoot, ject penetrate wound,” of the and could strike, verbs else) inflicting a pistol mean no the deceased mortal one with the shot a wound counter which in instant death. information is resulted The part, allowing facts, approved for the difference in of one Conley, supra, 255 Mo. c. l. c. 164 S. W. l. after a appellant’s consideration of by the eases cited counsel. assignment
The next of is that there was not sufficient proof the venue. appellant’s confession deceased was killed body was where'his found. That was about miles of two south Pomona, County, judicial and was in Howell fact which take we notice. point But the is further without merit failure to prove because venue exception, is matter Dimmick, 331 Mo. State v. Being so, 53 W. preserved is not point un trial, raised less in the that was not done in case. assignment
Another is that the record fails to verdict show jurors empaneled cause; try rendered they the twelve or were all in court when the verdict was returned; that the jury were charge the sheriff; brought or that sheriff them into court return verdict. Section Revised Statutes (Mo. Ann., p. 3255), provides Stat. agreed the jury that “when upon a verdict, they must be conducted into court officer hav ing charge.” them in There is requirement a similar in Section Revised (Mo. Ann., 3236). Statutes p. Stat. cites Counsel these sections Meyers, and relies on State v. is shown in which the footnote to the first requiring mentioned statute as record jurors disclose that all were present when the verdict was received Turpin, court. But State v. 1012, 1019, 61 (2d) 945, 948, points Meyers out affirmatively ease it appeared only jurors eleven present were when verdict The Turpin was received. case holds that where the record jury shows the returned into court signed by verdict (as foreman case) does show in instant negative merely and is or silent many jurors as to how present, were a presumption right action part on the of the trial will court indulged. day the first July 21, record 1937, shows empaneling swearing jury twelve men to try cause. placed day they were end of naming recites at the them, and for that sheriff, sworn charge deputy and a sheriff named sheriff day’s proceedings the second shows the purpose. The record of court; and that after present recites deputies jury and his evidence, argument, jury hearing instructions and open court day into to deliberate and on the same returned retired affirmatively appear were jury their verdict. It does *12 charge deputy of time. the sheriff or the in if holding the jury
We find case that record shows the were no placed charge beginning in of at the the trial (as sworn officers of this does) custody remained in presumed they record it will be of such trial, throughout nothing contrary appearing. officers to the But the think we such It held in presumption. is is that the absence showing of a record it will otherwise, presumed be the trial in making up jury impaneling court followed the list law and in jury. (Mo. 2), (2d) 87, So, State Perno Div. 23 W. v. S. 88-9. also, it is well settled affirmatively record need not show the in charge jury officers of the Stubblefield, were v. 157 sworn. [State 360, 366, 337, 339; Page, Mo. 58 S. W. 212 State v. Mo. 110 Exceptions irregularities must be saved in swear 1057, 1062.] ing jury, Frazier, 982, (2d) 707, State 339 966, v. Mo. 98 S. W. rule separation before, is that misconduct or jury of the or they even after verdict, retire to deliberate on their ais matter of exception, question and the must be in preserved the motion new McGee, 1082, trial. 1090, v. 336 seq., (2d) Mo. et 83 W. S. [State 98, 102; Trainer, 620, 336 134; Mo. (2d) 131, State v. Malone, 594, 609-10, Mo. 915; S. (Mo. v. Bowman 2), Div. (2d) 51, 12 W. S. Indeed, the 52(5).] provision second of the prescribing grounds statute for new trial implies as much. Ann., p. Mo. Stat. The same is [Sec. 3272.] true where trial proceedings are of conducted the de absence fendant. v. Tarwater, 480,W. [State 485.] short, all proceedings such are, as the says, Bowman matters case procedure exception which preserved must be motion for new trial. That was not case, done in ques we so conclude the tion whether the jury in custody remained through sworn officers out the trial is not before us. Finally, it assigned that the record appel fails to show present lant was on the second and concluding day trial, July 22, when the verdict was returned. true; This is the record silent point. But it does show he present when began the trial July 21. Section (Mo. Revised Statutes 1929 Ann., Stat. p. 3218), provides person that “no a felony indicted for can tried unless be personally present during the trial.” But there is a proviso in the section that “when the record in appellate court any present at the commencement the defendant was
shows absence of presumed, stage it shall be other during present contrary, that to the evidence the record returning presumption extends trial.” This the whole Fur- 1, 11, 247 S. W. Comer, 296 Mo. verdict. thermore, [State case, supra, hold Tarwater Comer case as this not raised in question review because not for point is for new trial. brief in appellant’s assignments of error This covers all as given. of these One two, complain instructions except which charges error trial. It signments appears in the motion also ground on the giving State’s main instruction degree prima did facie case murder not make Missouri, 1929 Statutes statute. Section Revised under the Ann., 2778). nothing than a demurrer (Mo. p. This is more Stat. already question. evidence, discussed that to the and we have assignment which told other Instruction No. assails the State’s jury, substance, any statements made that evidence verbal in connection with be taken into consideration should *13 cau circumstances, considered with other facts and but should be tion, forget, liability of of the witnesses to misunder on account the argued really or intended. It is stand or misconstrue what was said singles upon appellant’s admis this instruction out and comments ap sions. We cannot think the instruction harmful was of pellant, concluding cautionary regardless in of part. view the But that, point presented was not in the motion for new trial. appellant not
The asked instructions at no and did suggest that the court failed to instruct law had of point case. That not in Neither was made trial. involuntary. was claimed in motion that The it his confession was appellant present was record shows when his new motion for overruled, granted trial present was he was allocution was and judgment sentence pronounced. when were We find no reversible record, judgment in the must error be affirmed. But, since judgment provides for the execution of by the death sentence Oregon County, Missouri, hanging pursuant the Sheriff of to Sec 3723, (Mo. Revised 1929 3268) ; tions 3722 and Statutes Stat. Ann., p. repealed as sections have since been and inasmuch these Mo. Laws 223,' September 222, 6, 1937, effective 1937, pages requiring pun be inflicted death to administration of gas ishment lethal Penitentiary in City, Jefferson Missouri; State it at the is ordered trial to the court with be remanded cause that the directions to pronounce and to brought it before appellant sentence in accord aforesaid, holding last and the the statutes of this ance court in 53, (2d) W. 112 S. 568; Mo. Brown, 342 All v. State concur.
1183 por Rehearing. On Motion vigorous rehearing ELLISON, In his motion J . complains our opinion grounds.
ly our three assails evi not overruling assignment proven. his that the venue was found, and was body showed Dr. killed where his dence Davis was about miles Highway two point adjacent at S. was U. fact that judicial notice opinion Pomona. Our took south of in laid County, in point is in Howell -where the venue citing doing, so Appellant we committed error in formation. asserts original following brief; v. not referred to State cases 576, King, 299; Hartnett, v. Mo. 20 S. State Mo. App. Quaite, v. 20 Mo. 251; Burgess, 75 Mo. State v. State King crime 408. In the showed only the evidence case charged Cora; case, committed at in the Hartnett near Scotts Station; Burgess case, Point. instance Camden each county proof this court insufficient fix the held venue alleged Quaite in the information. ruled squarely And ease alleged “proof that the committed in Free offense was the town of man, in tending absence of to show that town was ’’ County, not Cass laid proof the venue in the indictment. as hand, Jamison, On the other v. Mo. Bell 714, 715, judicial this court took notice the fact Camden County; Skibiski, Point in Lincoln 1038, 1039, eight that a point miles from Doni county County, phan, Ripley seat of is within the How county. ever it been has held judicial knowledge courts do not have unincorporated villages (State Bush, location App. 608, 118 W. 672), appellant says in his motion for re hearing that unincorporated. Nevertheless, Pomona is it listed Book, Missouri, having Blue Official Manual of the as post office. The last Federal gives population census *14 and the official Department records of the Highway State show be located on U. Highway S. also and St. Louis-San Fran on Railroad, cisco about miles ten east of boundary, the west thirteen miles of boundary, south the north fourteen miles of west the east twenty-five boundary, and miles north of the south boundary, of County. Howell We have held least twice we judicial that will take of our notice of the location the roads in Highway system, State therealong. Enochs, distances 339 953, 956, v. Mo. 98 S. [State v. (2d) 686; Ashcraft, W. 342 608, 615, Mo. (2d) 128, And in general is line with doctrine au 131.] thorizing judicially court to know facts a which are part a of country, knowledge general duly which are authenticated public repositories open to all. ex rel. in O’Dell Const. Co. [State Hostetter, S. (2d) 104 W. v. 673.] committed. murder dispute spot to the where There is no as showing in what there no assignment made that is is proof that the is in this State county is located. rule point that can, from the reasonably inferred be if it “is sufficient of venue Mo. Gow, 235 evidence.” in circumstances
facts and [State holding in that hesitation in no We have W. 138 S. may we foregoing facts geographical view of the evidence not) in Howell is incorporated (whether judicially Pomona say Highway 63 miles S. two south point a U. on that County and urged be county. rule should If it that the that is in there also only say capital cases, we can cases, especially in criminal stricter violated, are rights of the defendant not the substantial that where facts it eyes ease would not in criminal shut its court should life, protection any case. Indeed recognize other .judicially im aggression quite make it as against criminal property person and tried public, interest that cases be standpoint portant from any appellant’s merit in Neither is there common methods. sense substituting judicial knowl ruling are that so we our contention required finding jury. edge The instructions fact County. They appellant killed Dr. .jury to Davis Howell find holding We are that verdict. merely did so evidence sustains find. preceding para- considered and While we have discussed assignment, passed fact yet it has graphs appellant’s that preserve case because he his motion for out failed new proven. held point trial the venue not so We our original ruling erroneous, opinion, citing but assails as cases, including: Keeland, State v. fourteen Mo. 190; Myer,
442; Quaite, supra, State v. Mo. Mo. App. All these cases concede must we consult bill of ex- ceptions to ascertain whether evidence proving there was the venue. All of appears them that where it hold nowas such evidence reversed; they say annexing conviction must be so without any condition that the must point for new be saved the motion They trial. simply question .do at all. discuss the The case Quaite There, nearest to comes it is the case. the State’s brief point made the the motion trial any failed to raise venue, question proof of but City the Kansas Ap- Court of peals and remanded ground reversed cause that sole without assignment any reference to the lack such an in the motion for new thought may be which indicate view it was unnecessary. original opinion prove we held our failure to the venue is a citing exception, Dimmick, State v. matter of 248, 53 being 262, 266; so, point that the preserved is not new motion for trial. unless raised Counsel for appellant take saying holding us, unprecedented issue with and in conflict *15 preceding paragraph. referred second all decisions review exception open to are that matters We think it fundamental court’s at trial they been to the only when called appeal on Wagon Drivers’ Milk trial. tention a motion [Syz Wolzenski, 441, 443; Union, 18 S. (2d)W. 105 S. ago cases cited years and more when the may fifty be that It question unproven decided, considered it was appellant were sufficiency by general assignments denying the could venue be raised instruc evidence, complaining peremptory refusal of of the or - now, especially But the law in view 'of -our new tion, etc. that is not statute, (Mo. Ann., p. Statutes 1929 Stat. Section Revised trial requires assignments in the motion to out 3275), which be de set recognize general While particularity. tail and with we still such go challenge assignments they insofar as to the main issue sufficiency guilt; yet true proof of the is defendant’s not not proven, of mere contention that was which is in venue plea avoidance, of a procedurally confession and ad the nature but.claiming mitting guilt juris the evidence did not show in what diction crime was committed. That the venue is not considered part an of the crime essential Section Revised Stat shown (Mo. Ann., 3160), p.- provides utes 1929 Stat. which that no indict invalid, or information ment shall be deemed nor shall judgment affected, venue, for proper any be want of venue at all. declaring hardship thus law we work appellant, no for as already held, the sufficiently we have case. venue was proven in this assignment overruling third opinion asserts our erred appellant’s contention' present record show fails he was ' day on the second of the trial. The record present does show he was day the first concluding the trial and we held pro- under viso of Section (Mo. Ann., p. 3218), Revised Statutes 1929 Stat. presumed it would present throughout be trial; was also the point exception, is a matter of not for review be- question cause the raised in motion for trial. The new provides statute person “no indicted a felony can unless tried be present personally during trial; provided . . further, . that when the record the appellate court shows that defend- present ant at any stage commencement other or. presumed, it shall be in-the absence the record to ” contrary, that he present during the whole trial. The record in the instant day case for the. second trial recites: ‘-‘Now day again parties, comes Plaintiff Defendant, by their - respective attorneys,” (Italics appellant’s.) etc.- Appellant now says rehearing his motion for -just -the record recital quoted equivalent to a direct statement that he was not present on the sec- *16 brings attorney; that trial, appeared day the but ond other out—in statute, set above proviso of the facts within the the was absent. he record shows words, all the Sehoenwald, 31 Mo. v. cites point appellant On this the well again come as entry “Now the was: case 159-160. In that decision The aforesaid.” jurors as also the aforesaid parties as aforesaid,” “parties word entry used the the fact that the stressed ruling before, day the the in had been court defendant the and since But presence. defendant’s entry sufficiently showed the was at- appeared he “if it been entered had opinion added: the subject, record, by silence on the its it from the torney, appeared or if erro- judgment would be the present, no doubt he was not had provisos in before two That case was decided neous.” require af- an construed to was then to statute. It been added abolish presence. To showing of the defendant’s
firmative record provisos were requirement added two technical this harsh and 347, 356-8, Hope, v. in Revision 492, L. A. 608. 8 R. defend- says if now it the record shows the reads As statute trial, stage any other present at the commencement or ant was throughout, present in the absence of all be he was presumed will it contrary; say in the absence not record to does evidence in contrary. think this evi- <my means evidence to the We contrary overcome point in whole record must dence It is statutory presumption. Why And should this not so. justice ground technical perversion of reverse case on the presence to (cid:127)show defendant’s in court when the record fails entry present, point below. fact he or the not raised The was day again trial recited “come the said this case second ’’ attorneys. parties, Defendant, by respective Plaintiff and their The present by attorney. .appellant person could have and also been appeared by attorney signify fact not necessarily does ¡that court, nothing he was himself. not There else in record tending day present. indicate He the first day case, the trial. second the State its the de- concluded presented case, argued fense its the cause was submitted, jury returned its verdict. It is incredible that counsel would proceeded trial, thus have with the trial or that court would permitted so, him to do the appellant’s absence. above, In view of what is think legislative we intent ex- statute, hibited Section was to save criminal cases from reversal vagueness because of mere silence or in record recitals con- cerning presence require defendant’s and to show- ing record, including in the whole exceptions the bill of that he was so, being point preserved absent. This must be motion for original opinion followed State we holding trial. In so in our new ruling Comer, we think correct. rehearing is All overruled. motion for Accordingly, concur. County District No. of Clinton
Consolidated Bessie School *17 ’Malley Husband, J. Appellants. and Patrick O Her ’Malley, O 818. One, Division March
Julian O’Malley Phillips L. V. E. appellants.