Porter v. State , 5 Mo. 538 ( 1839 )

Tompkins, Judge,

delivered the opinion of the court.

Porter was indicted in the county of St. Louis, and on trial found guilty of the crime of adultery. He obtained a new trial, and also a change of venue to the county of Jefferson, where being again found guilty, he appealed to this court.

A change of venue is allowed by the statute, first, where the Judge of the court in which the cause is pending is near of kin to the defendant, by blood or marriage; or, second, where the defendant is a slave, and such Judge, or a person near of kin to him, is the owner or has any interest in such slave; or, third, where the of-fence charged is alleged to have been committed against the person or property of such Judge, or of some person near of kin to him; or, fourth, where the Judge is in anywise interested, or shall have been counsel in the cause.

The cause assigned for a change of venue is, that the judge of the circuit court was prejudiced against him. It was in evidence, that three or four years before the trial,'the prisoner was an inhabitant of St. Louis county, and married; and that Louisa Matheney and her mother lived in the prisoner’s family, being poor and relsited to him; that three or four years ago, said Louisa left the county of St. Louis, and that about two weeks after-wards, the prisoner left the county and was absent about three years; that in some short time after Porter and Louisa had left their usual place of residence, the witness, at the request of the wife of Porter, sought him out and found him at the market house. Porter told him that he had taken Louisa across the river, and intended to do something for her. He denied any intention of abandoning his wife, but said he was going away on business. Porter, after an absence of about three years, returned to St. Louis county. Since his return, Porter has lived principally at his father’s house. Shortly after the return of Porter, Louisa also returned, and resided at the same house with the prisoner, Porter, having become the mother of two children. Other evidence was given, which showed that they were seen frequently to go into the bed room together at night, Louisa bearing one •child and the prisoner the other. But a witness on the part of Porter stated that they occupied different beds; that Porter, the prisoner, slept with the witness, and generally rose first in the morning, and that he had never observed any improper conduct on the part of Porter towards Louisa.

On the part of the prisoner, it is contended that, 1. The change of venue was improperly granted, and therefore the court had no jurisdiction of the case, and its judgment must therefore be void. 2. That supposing the court had jurisdiction, the evidence did not warrant the finding of the jury.

Indictment in St. Louis circuit court for adultery, —venue changed to Jefferson ty on application of defendant, and that the judge was prejudiced gainst him. Held, statute did not Iowa change of cause and'that was error to allow it on the affidavit, still,a.s the change was procured by defendant for hit owneaseandcon-■venience, and to •eompetentVjuris-diction of that species of offence, nofreverse'Vhe judgment of the circuit court on count of such ¡1-legal change of Jud e dissented — ing that the case feraoVcount0 Ief' was coramnonju-dice, that the cir-Ü*í,tn?ourt.Ií.f l^at jurisdiction of that cause,-the dant'could nol™' confer jurisdiction.

After two verdicts and one change of venue, the evidence ought to be weak, indeed, if another new trial were granted. The circuit judge who granted the first new trial, must, ii seems to me, have been influenced in his decision by the fear of doing injustice to the prison■er, for it appears in evidence that the wife of the prisoner, during his absence, had obtained a divorce before the thesame judge. The evidence was so strong that, it appears tome, the judge, in granting the first new trial, committed the fault peculiar to men of nice sensibility, to c c 1 1 • , , J 7 in >av°r m Hie person against whom he was suspected of being prejudiced. i\o error then appears to and me to have been committed by the circuit court of Jef-ierson count) m refusing a new trial. It is next to m-a-quire whether the action of the court is void for want of jurisdiction It is plain that the statute does not allow al-a change or venue because the judge was prejudiced, of and it was error to allow it on the affidavit; and if the itStatUte cou^ have conferred on the State the right to change the venue, and it had by this act done so, then the State would deservedly have had its judgment reversed for its illegal act to the prejudice of the defen-r a

Rut the prisoner changes th¿ venue himself, or rather, the court at his instance, orders- it to be changed, and he causes 10 he changed; and to be changed, too, to a court having jurisdiction of that species of oifence against the laws.» Had the cause been sent to the county court f°r it is clear that every thing done therein would he null and void, but otherwise, it appears to me, in the circuit court, a court having jurisdiction of such offen-constitution has secured to the prisoner a right of trial by the .vicenage. The law allows him to> waive that right in certain cases. This certainly is not now one of tilose eases. The State had before found inconvenie'nee of allowing a change in such cases, and repealed -the law. So, in defiance of law, the pris-?r’ *'or '*s own ease and convenience, procures a change & venue to a court of competent jurisdiction,, and then complains of the illegality of the act.

In my opinion, the judgment of the circuit court ought not, tor either or the above reasons, to be reversed. Un this last point of the jurisdiction of the circuit court of ^e^el'son county, Judge Napton differing in opinion, the judgment of the circuit court must be affirmed, and it accordingly is affirmed.