Citation Numbers: 126 S.W.2d 245, 343 Mo. 1168
Judges: ELLISON, J.
Filed Date: 2/21/1939
Status: Precedential
Modified Date: 1/12/2023
[11] In his motion for rehearing appellant vigorously assails our opinion on three grounds. The first complains of our overruling his assignment that the venue was not proven. The evidence showed Dr. Davis was killed where his body was found, and that was at a point adjacent to U.S. Highway 63 about two miles south of Pomona. Our opinion took judicial notice of the fact that that point is in Howell County, where the venue was laid in the information. Appellant asserts we committed error in so doing, citing the following cases not referred to in his original brief; State v. King,
There is no dispute as to the spot where the murder was committed. The assignment made is that there is no evidence showing in what county that point is located. The rule in this State is that the proof of venue "is sufficient if it can be reasonably inferred from the facts and circumstances in evidence." [State v. Gow,
While we have considered and discussed in the preceding paragraphs appellant's first assignment, yet the fact is that it has passed out of the case because he failed to preserve in his motion for new trial the point that the venue was not proven. We so held in our original opinion, but appellant assails that ruling as erroneous, citing fourteen cases, including: State v. Keeland,
In our original opinion we held failure to prove the venue is a matter of exception, citing State v. Dimmick,
[12] It may be that fifty years ago and more when the cases cited by appellant were decided, it was considered the question of unproven venue could be raised by general assignments denying the sufficiency of the evidence, or complaining of the refusal of a peremptory instruction, etc. But that is not the law now, especially in view of our new trial statute, Section 3735, Revised Statutes 1929 (Mo. Stat. Ann., p. 3275), which requires assignments in the motion to be set out in detail and with particularity. While we still recognize such general assignments insofar as they go to the main issue and challenge the sufficiency of the proof of defendant's guilt; yet that is not true of a mere contention that the venue was not proven, which is in the nature of a plea of confession and avoidance, procedurally admitting guilt but claiming the evidence did not show in what jurisdiction the crime was committed. That the venue is not considered an essential part of the crime is shown by Section 3563, Revised Statutes 1929 (Mo. Stat. Ann., p. 3160), which provides that no indictment or information shall be deemed invalid, nor shall the judgment be affected, for want of a proper venue, or any venue at all. In thus declaring the law we work no hardship on appellant, for as we have already held, the venue was sufficiently proven in this case.
[13] The third assignment asserts our opinion erred in overruling appellant's contention that the record fails to show he was present on the second day of the trial. The record does show he was present on the first day of the trial and we held under the concluding proviso of Section 3665, Revised Statutes 1929 (Mo. Stat. Ann., p. 3218), that it would be presumed he was present throughout the trial; also that the point is a matter of exception, and was not for review because the question was not raised in the motion for new trial. The statute provides "no person indicted for a felony can be tried unless he be personally present during the trial; . . . provided further, that when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial." The record in the instant case for the second day of the trial recites: "Now at this day comes again the said parties, Plaintiff and Defendant, by their respective attorneys," etc. (Italics appellant's.) Appellant now says in his motion for rehearing that the record recital just quoted is equivalent to a direct statement that he was not present on the second *Page 1186 day of the trial, but appeared by attorney; and that this brings the facts within the proviso of the statute, above set out — in other words, all the evidence in the record shows he was absent.
On this point appellant cites State v. Schoenwald,
As the statute reads now it says if the record shows the defendant was present at the commencement or any other stage of the trial, it will be presumed he was present throughout, in the absence of all evidence in the record to the contrary; it does not say in the absence of any evidence to the contrary. We think this means all the evidence in the whole record must point to the contrary to overcome the statutory presumption. And why should this not be so. It is a perversion of justice to reverse a case on the technical ground that the record fails to show the defendant's presence in court when in fact he was present, or the point was not raised below. The entry in this case for the second day of the trial recited "come again the said parties, Plaintiff and Defendant, by their respective attorneys." The appellant could have been present in person and also by attorney. The fact that he appeared by attorney does not necessarily signify he was not in court, himself. There is nothing else in the record tending to indicate he was not present. He was there the first day of the trial. The second day the State concluded its case, the defense presented its case, the cause was argued and submitted, and the jury returned its verdict. It is incredible that his counsel would have thus proceeded with the trial, or that the trial court would have permitted him to do so, in the appellant's absence.
In view of what is said above, we think the legislative intent exhibited by the statute, Section 3665, was to save criminal cases from reversal because of mere silence or vagueness in record recitals concerning the defendant's presence at the trial, and to require a showing in the whole record, including the bill of exceptions that he was absent. This being so, the point must be preserved in the motion for *Page 1187
new trial. In so holding in our original opinion we followed State v. Comer,
Accordingly, the motion for rehearing is overruled. All concur.
State v. Comer , 296 Mo. 1 ( 1922 )
Syz v. Milk Wagon Drivers' Union , 323 Mo. 130 ( 1929 )
State v. Ashcraft , 342 Mo. 608 ( 1938 )
State Ex Rel. O'Dell Const. Co. v. Hostetter , 340 Mo. 1155 ( 1937 )
State v. Dimmick , 331 Mo. 240 ( 1932 )
State v. Wolzenski , 340 Mo. 1181 ( 1937 )