State v. Kenyon , 343 Mo. 1168 ( 1939 )

[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, 111 Mo. 576, 577, 20 S.W. 299; State v. Hartnett, 75 Mo. 251; State v. Burgess, 75 Mo. 541, and State v. Quaite, 20 Mo. App. 405, 408. In the King case the evidence showed only that the crime charged was committed at Cora; in the Hartnett case, near Scotts Station; and in the Burgess case, at Camden Point. In each instance this court held the proof was insufficient to fix the venue in the county alleged in the information. And the Quaite case squarely ruled "proof that the alleged offense was committed in the town of Freeman, in the absence of evidence tending to show that said town was in Cass County, was not proof of the venue as laid in the indictment." On the other hand, in Bell v. Jamison, 102 Mo. 71, 76, 14 S.W. 714, 715, this court took judicial notice of the fact that Camden Point is not in Lincoln County; and in State v. Skibiski, 245 Mo. 459, 464, 150 S.W. 1038, 1039, that a point eight miles from Doniphan, the county seat of Ripley County, is within the county. However it has been held courts do not have judicial knowledge of the location of unincorporated villages (State v. Bush, 136 Mo. App. 608, 616, 118 S.W. 670, 672), and appellant says in his motion for rehearing that Pomona is unincorporated. Nevertheless, it is listed in the Blue Book, or Official Manual of the State of Missouri, as having a post office. The last Federal census gives it a population of 200, and the official records of the State Highway Department show it to be located on U.S. Highway 63, and also on the St. Louis-San Francisco Railroad, about ten miles east of the west boundary, thirteen miles south of the north boundary, fourteen miles west of the east boundary, and twenty-five miles north of the south boundary, all of Howell County. We have held at least twice that we will take judicial notice of the location of the roads in our State Highway system, and of distances therealong. [State v. Enochs, 339 Mo. 953, 956, 98 S.W.2d 685, 686; State v. Ashcraft, 342 Mo. 608, 615, 116 S.W.2d 128, 131.] And this is in line with the general doctrine authorizing a court to know judicially facts which are a part of the general knowledge of the country, and which are duly authenticated in public repositories open to all. [State ex rel. O'Dell Const. Co. v. Hostetter,340 Mo. 1155, 1161, 104 S.W.2d 671, 673.]

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, 235 Mo. 307, 325, 138 S.W. 648, 653.] We have no hesitation in holding that in view of the evidence and the foregoing geographical facts we may say judicially Pomona (whether incorporated or not) is in Howell County and that a point on U.S. Highway 63 two miles south of there also is in that county. If it be urged that the rule should be stricter in criminal cases, especially capital cases, we can only say that where the substantial rights of the defendant are not violated, the court should not shut its eyes in a criminal case to facts it would judicially recognize in any other case. Indeed the protection of life, person and property against criminal aggression make it quite as important from the standpoint of public interest that cases be tried by common sense methods. Neither is there any merit in appellant's contention that by so ruling we are substituting our judicial knowledge for a finding of fact by the jury. The instructions required the jury to find the appellant killed Dr. Davis in Howell County. They did so find. We are merely holding the evidence sustains that verdict.

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, 90 Mo. 337, 2 S.W. 442; State v. Myer, 64 Mo. 190; and State v. Quaite, supra, 20 Mo. App. 405. All these cases concede we must consult the bill of exceptions to ascertain whether there was evidence proving the venue. All of them hold that where it appears there was no such evidence the conviction must be reversed; and they say so without annexing any condition that the point must be saved in the motion for new trial. They simply do not discuss the question at all. The case that comes nearest to it is the Quaite case. There, the State's brief made the point that the motion for new trial failed to raise any question on proof of the venue, but the Kansas City Court of Appeals reversed and remanded the cause on that sole ground without any reference to the lack of such an assignment in the motion for new trial, which may be thought to indicate a view that it was unnecessary.

In our original opinion we held failure to prove the venue is a matter of exception, citing State v. Dimmick, 331 Mo. 240, 248,53 S.W.2d 262, 266; and being so, that the point is not preserved unless raised in the motion for new trial. Counsel for appellant take issue with us, saying the holding is unprecedented and in conflict with all the decisions referred to in the second preceding paragraph. We think it fundamental that matters of exception are open to review on appeal only when they have been called to the trial court's attention by a motion for new trial. [Syz v. Milk Wagon Drivers' Union, 323 Mo. 130, 134, 18 S.W.2d 441, 443; State v. Wolzenski, 340 Mo. 1181, 1187, 105 S.W.2d 905, 908.]

[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 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, 31 Mo. 147, 159-160. In that case the entry was: "Now again come as well the parties as aforesaid as also the jurors aforesaid." The decision stressed the fact that the entry used the word "parties aforesaid," and since the defendant had been in court the day before, the ruling was that the entry sufficiently showed defendant's presence. But the opinion added: "if it had been entered that he appeared by attorney, or if it appeared from the record, by its silence on the subject, that he was not present, no doubt the judgment would be erroneous." That case was decided in 1860 before the two provisos had been added to the statute. It was then construed to require an affirmative record showing of the defendant's presence. To abolish this harsh and technical requirement the two provisos were added in the Revision of 1879, State v. Hope, 100 Mo. 347, 356-8, 13 S.W. 490, 492, 8 L.R.A. 608.

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 new trial. In so holding in our original opinion we followed State v. Comer, 296 Mo. 1, 11, 247 S.W. 179, 182, and we think that ruling was correct.

Accordingly, the motion for rehearing is overruled. All concur.