119 S.W.2d 286 | Mo. | 1938
Lead Opinion
Felix Francis McDonald appeals from a judgment imposing a sentence of sixty years' imprisonment under Section 4020, Revised Statutes 1929 (Mo. Stat. Ann., p. 2827) for the kidnaping of Isaac Dee Kelley. He admits a case made by the State. The case reaches the writer upon reassignment.
[1] The indictment, charging appellant and others, was returned into the Circuit Court of St. Louis County on March 13, 1934, and the cause was assigned to Division No. 3 of said court. On March 14. Judge Fred E. Mueller of said Division disqualified himself and *1001 the cause was transferred to Division No. 4. On June 11, 1934, said defendants filed a joint application alleging they were proceeding under the third clause of Section 3648, Revised Statutes 1929 (Mo. Stat. Ann., p. 3203), to disqualify Judge Robert W. McElhinney, Judge of Division No. 4 of said court, on the ground said Judge was "prejudiced against your petitioners." Whereupon, the court transferred said cause to Division No. 1 of said court. On January 21, 1935, appellant filed an application alleging that he was proceeding under said Section 3648 to disqualify Judge Julius R. Nolte, Judge of Division No. 1 of said court, on the ground said Judge "will not afford your petitioner a fair trial." Each of said applications alleged it was supported by the affidavits of two reputable persons, not of kin to or counsel for the defendant, and the supporting affidavits were filed with their respective application. Judge Nolte overruled the second application and appellant asserts error thereon.
Under said Section 3648 judges are deemed incompetent to hear and try causes under four specified conditions, the conditions here involved being: ". . . or, third, when the judge is in anywise interested or prejudiced, or shall have been counsel in the cause; or, fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial." Section 3649, Revised Statutes 1929 (Mo. Stat. Ann., p. 3204), designates an application to disqualify a trial judge under said Section 3648 an "application for change of venue," and Section 3637, Revised Statutes 1929 (Mo. Stat. Ann., p. 3198), provides ". . . and in no case shall a second removal of any cause be allowed." Said statutory enactments constitute a portion of our general code of criminal procedure and State ex rel. McAllister v. Slate,
But, the County of St. Louis constitutes the Thirteenth Judicial Circuit [Sec. 1977, R.S. 1929, Mo. Stat. Ann., p. 2621] and statutory enactments exist for the substitution of trial judges in said circuit [Secs. 14611-14630, R.S. 1929, Mo. Stat. Ann., p. 2634-2640; Laws 1909, pp. 408-410; Laws 1929, pp. 157-161]. Section 14626 relates to the substitution of trial judges. In State v. Rosegrant,
[2] Reversible error was not committed in overruling appellant's motion to disqualify the sheriff and deputy sheriffs of St. Louis County. The motion alleged said officials were prejudiced against defendant and would not impartially perform their official duties. "`It has long been the settled law of this court that the disqualification of the sheriff under this section [Sec. 1845, R.S. 1929, Mo. Stat. Ann., p. 2565] is a matter of discretion with the court, and unless there is some showing that the discretion exercised was arbitrary and unjust, the action of the court will not be overruled.'" [State v. Boesel (Mo.), 64 S.W.2d 243, 245(1), quoting State v. Young, *1003
[3] The court correctly overruled appellant's motion for an order on the prosecuting attorney to inspect the minutes of the grand jury's proceedings. The stated purpose of the motion was the possible impeachment of State witnesses in the event their testimony at the trial should be inconsistent with said minutes, which, with the stated reason that appellant knew of no other method for ascertaining the testimony of witnesses before the grand jury, constituted appellant's objections to the court's ruling.
Impeachment of witnesses for variations in testimony before a grand jury and at the trial is usually accomplished through some member of the grand jury or other person lawfully in attendance thereon, and not from the minutes kept by said body. [Consult State v. Thomas,
Appellant's motion specified the testimony of no given witness or factual issue or issues sought to be reached; but called for a blanket inspection of said minutes irrespective of whether they covered relevant or irrelevant matter. These minutes, inadmissible in evidence under State v. Thomas, supra, constituted no substantive proof of appellant's guilt or innocence. The motion affirmatively discloses that the witnesses had theretofore testified at another trial involving the same offense. State v. Pierson, 343 Mo. ___,
[4] Immediately prior to the voir dire examination of the jurors, appellant filed an application for a continuance, alleging the absence of one Grady, confined in the Iowa State penitentiary, and that appellant, if able to raise the necessary funds, would take said Grady's deposition. The application was overruled and error is assigned. Appellant's application disclosed that the facts to be established by said Grady's testimony were the result of arrangements had between the prosecuting witness and one Hayes. There was no showing why all of said facts could not be established by said Hayes. The application states that appellant had just come into knowledge of the testimony mentioned in the application. A counter affidavit was to the effect appellant had knowledge of the testimony for three weeks or more. The application made no showing of what diligence, if any, had been used by appellant in the premises. [State v. Hubbard (Mo.), 295 S.W. 788, 790(2).] That a continuance would result in securing the witness testimony was speculative. In sustaining the overruling of an application for continuance, based, in part, on the absence of a nonresident witness, we said in State v. Ward,
[5] Lastly, appellant asserts error in the court's refusal to declare *1006 a mistrial on the ground that the arrest of one of appellant's witnesses for perjury resulted in intimidating other witnesses for appellant and deprived appellant of testimony material to his defense.
Herman Cooperman testified to the effect he had observed the prosecuting witness and one John Rogers frequenting certain gambling places prior to the kidnaping, which testimony tended to impeach the prosecuting witness, who testified that, prior to the kidnaping, he did not know John Rogers and had never frequented gambling places. After leaving the witness stand and outside the presence of the jury, Cooperman upon order of one of the attorneys for the State, was taken into custody for perjury. A preliminary examination was had outside the presence of the jury. Upon the return of the jury, appellant's counsel established by Cooperman that he had been arrested and thereafter released upon the order of the court; and by Mrs. Brewer that she saw Cooperman in the hall escorted by men whom she thought were deputy sheriffs and decided she would not incriminate herself; that she did not know what Cooperman did and had no reason to believe he did not tell the truth; that she did not care to testify; and that she was afraid if she testified she would be arrested. The cases cited by appellant, State v. McKay,
Counsel makes no complaint as to matters of record proper. We find no reversible error therein. A number of issues involved in the record proper are discussed in State v. Rosegrant,
The issues presented for review do not call for a remanding of the *1007 case. Several pass off on the exercise of a discretion by the trial court. Accordingly, the judgment is affirmed. Cooley andWesthues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.