94 Mo. 79 | Mo. | 1887
Defendant was indicted in the Butler county circuit court, at its May term, 1885, for an assault with intent to kill one M. A. Johnston. The judge of said court, having been of counsel, ordered an election of a special judge to try the case, which the clerk thereupon held, and which resulted in a tie vote-
The defendant then presented an application for change of venue, based upon the allegation that the special judge was prejudiced, and that the prosecuting attorney and witnesses had an undue influence over him. The action of the court in overruling -the application is objected to as error. The change of venue was properly denied, if for no other reason.than that defendant’s application was not supported by the affidavit of two or more reputable persons not of kin to defendant, as required by section 1878, Revised Statutes, 1879.
The defendant presented an application for continuance on the ground that material witnesses, who had been subpoenaed, were not in attendance. The application fully set out what defendant expected to prove by the absent witnesses, and also such facts as to authorize-a continuance under section 1884, Revised Statutes, 1879. The prosecuting attorney having consented that on the trial the facts set out in the application as the facts which defendant expected to prove by the absent witnesses should be taken as and for the testimony of such witnesses, the court thereupon overruled the application and ordered the trial to be proceeded with, and in so holding committed reversible error, under the ruling of this court in the case of State v. Berkley, 92 Mo. 41.
For the error above noted the judgment will be reversed and cause remanded,