Golden v. State

13 Mo. 417

• Court: Supreme Court of Missouri
• Decided: July 15, 1850
• Status: Published

Opinion

RYLAND, J.

The plaintiff in error was indicted by the grand jury of Cole county, at the August term of the Circuit Court, in the yen' 1849, for making his escape from the penitentiary, in which he was then undergoing a punishment by confinement for a term less than life, to-wit: for eight years, for a felony before that time committed by him. Before the trial was had in this case, the defendant below was brought into court by tlie lessees of the penitentiary, in obedience to an order of said court. Thereupon the court appointed counsel for the prisoner to assist him in making his defense. The defendant then moved the court for a change of venue, and filed his petition and affidavit; the petition setting forth the reason of the motion, viz. : the prejudice of the minds of .the inhabitants of said Cole county so much against the defendant as to render it impossible for him to have a fair and impartial trial of said case. Ho notice was given of this application to change the venue previously to the motion in court. The court overruled the petition to change the venue. The defendant then plead not guilty to the indictment. A trial was had; the jury found the defendant guilty, and assessed his punishment to two years’ imprisonment in the penitentiary. The defendant thereupon moved for a new trial, setting forth, among other reasons, the refusal of .the court to change the venue. This motion was overruled; the defendant excepted, and brings the case to this court by writ of error.

The only point relied on for a reversal of the judgment of the court below is the refusal of that court to change the venue. The attorney-general, for the defendant in error, contends that the judgment of the court below should be affirmed for two reasons. First, the failure to give “ the reasonable previous notice” of the application for the change of..venue, as required by the law. See Practice and Proceedings in Criminal Cases, article 5, § 20, Digest of 1845; and, Secondly, the omission of our statute to provide for change of venue in cases of indictment against convicts in the penitentiary.

With regard to the want of notice, the plaintiff in error relies upon the authority of the case of Reed v. The State, 11 Mo. R. 379,(

a) and upon the second point, relies upon the generality of the provisions of the statute concerning change of venue in criminal cases.

I am not satisfied that the notice arising alone from the act of filing the petition and affidavit is sufficient. The law contemplates a reasonable previous notice, and the case of Reed v. The State, above referred to, undertakes to state What would be considered reasonable previous notice, under a certain state of facts. In that case notice had been given. “ The notice is dated on the day of filing the petition.” The court, in their opinion, say “ the term reasonable, as here used, must be construed with reference to the existing facts. If the defendant had possessed a knowledge of the judged prejudice for days and weeks prior to his application for a change, then perhaps he should have given the prosecuting attorney notice before the morning of the day when the cause was called for trial.

There is a distinction between the case of Reed v. The State and the one now before us. In that case the court say that Reed gaye his notice “ at the earliest possible period”; as soon as he knew of the existence of the fact upon which he sought to change the venue. In this case no notice ever was given, other than the motion to change the venue in open court, and the filing the petition and affldavit.(b)

As to the second point. By reference to the statute authorizing change of venue in criminal cases, I find that “ any criminal cause pending in any Circuit Court, may be removed by order of said court, or the judge thereof, to the Circuit Court of any other county,” &c., <fee. See Practice and Proceedings in Criminal Cases, art. 5, § 17, Digest of 1845. “ Any criminal cause ” are words very comprehensive, and unless there are other provisions limiting their operation, would include this cause now before us. Section 29, of the same article, makes it the duty of the court or judge granting the order of removal, whenever the defendant be in actual custody or confinement, to make also an order commanding the sheriff to remove the body of the defendant to the jail of the county into which the cause is removed. And the 80th section of the article requires the sheriff to obey this order without unnecessary delay.

Here, then, if the court should order a change of venue in a criminal cause, pending against a person confined.in the penitentiary, to another county, it must also, at the same time, order the removal of the body of the defendant by the sheriff to the jail of the county to which the cause has been removed. This would materially affect the judgment heretofore given requiring the defendant’s imprisonment in the penitentiary. It is the duty of the sheriff to convey convicts for felonies to the penitentiary, and the duty of the keeper of the penitentiary to receive them and safely keep them. In certain cases, a convict may be brought out by habeas corpus to testify in our courts, but there is no law authorizing the courts or judges to command that the body of a convict should be taken from the confinement in the penitentiary and carried to a county jail, and there imprisoned to await his trial, which may be postponed for a year or eighteen months or more. Convicts in the penitentiary, during the term for which they were sentenced, suffer a suspension of all their civil rights. It may be that the Legislature, on purpose omitted to provide for a change of venue in criminal cases pending against convicts then in the penitentiary. The law as it now exists, in my opinion, does not warrant the Circuit Court or judge thereof to change the venue in any cause pending against a person undergoing sentence of imprisonment in the penitentiary. I have no doubt it never entered the minds of our legislators when enacting the statute concerning a change of venue in criminal causes, that its provisions were designed to include convicts in our penitentiary.

Were convicts permitted to change the venue in cases depending against them, and thereby have themselves taken from the State prison and confined in common and sometimes insecure county jails, there to await a trial, which could be postponed from term to term by the convict making out a suitable and proper cause, the whole term of imprisonment might in some cases be thus passed before the trial could be had. This would be inducement to the prisoners in the penitentiary to commit crime in order that they might have it in their power to procure a change of venue, and a consequent deliverance from the penitentiary.

The convicts are civililer mortvAis for the term of their sentence. To permit the oaths of such persons to authorize the courts to grant a change of venue, with the consequences that must now follow, was never in the contemplation of the' law makers. They have, therefore, wisely refrained from legislating on this particular subject.

The counsel for plaintiff in error invokes the principle of construing repugnant provisions of our statute in favorem, vita. It is our duty to make such construction as would reconcile the various provisions if we can do so, if not, we must look at the reason and design of the various enactments, and carry out the object of the Legislature. Upon the whole of this case, we find no reason to interfere with the judgment of the court below ; it is, therefore, affirmed.

(a) See note to this case. See State v. Grable, 46 Mo. R. 350.