State v. U. S. French

Ellison,. J. The defendant was indicted and convicted on a charge of abandoning his wife. There was a change of venue from the Dallas circuit court to Polk •county. In the latter county a special judge was selected to try the case. The following are the three errors ■complained of as stated by defendant: First. Error in overruling defendant’s objection to the transcript from Dallas county, and refusing his request for a rule on the clerk of the Dallas circuit court to send a perfect transcript, duly certified. Second. Error in overruling defendant’s objection to the special judge proceeding to try the case without taking the oath required by law. Third. Error in overruling defendant’s application for a continuance.” The oath taken by the special judge is as follows: ■“ State of Missouri, 1 v ss. ‘ County of Polk. ) ‘ ‘- — Being duly sworn on oath, states that he will support the constitution of the United States and the constitution of the state of Missouri and faithfully .and impartially demean himself-as special judge in the trial of the case of the State of Missouri r>. U. S. French.” “C. L. Russell. “Subscribed and sworn to before me this twenty-eighth day of October, 1890. “ W. I. Wallace. “Circuit Judge.” The statute, section 4176, Revised Statutes, 1889, prescribes that the special judge shall make oath that [478] he will try the cause “ without fear, favor or partiality.” Under the ruling of this court in State v. Bishop, 22 Mo. App. 435, we hold that the oath taken and subscribed in this case was a sufficient compliance with the statute. The defendant asked the court for a rule on the circuit clerk of Dallas county “ to send a perfect transcript duly certified.” This was refused. The objection made is to the certificate of the clerk in omitting to certify as to the “ record.” It is as follows : “State of Missouri, ) > ss. “ County of Dallas. ) “I hereby certify the foregoing to be a true and complete transcript of all the proceedings had in this cause, together with the depositions taken in this case which are hereto attached. “ Witness my hand and seal this sixteenth day of October, 1890. “L. S. J. P. O’Bannon, “Circuit Clerk.” The refusal of the court does not appear to have been incorporated in the motion for new trial, and we will therefore not consider these questions. The order of the Dallas circuit court changing the venue gave the Polk circuit court jurisdiction of the case. State v. Daniel, 66 Mo. 192. And the refusal of the latter court to make the rule was a matter of exception to be preserved by the motion for new trial. Putting it in the motion in arrest was not sufficient. There is no showing of any record omission in the transcript, the only complaint being as to the certificate above set out. The refusal to continue the cause was also not mentioned in the motion for new trial as it should have been, and we will not discuss that alleged error. It follows that the judgment should be affirmed. All concur.