The Sedalia weekly bazoo. [volume] (Sedalia, Mo.) 187?-1904, 1878-01-01

OF A1oo0Ot1
In the Case OF John Able, Con-
victed Of Murder.
The following is the decision Of the
Supreme Court Of Missouri in the case
of John Able. Of Mcdonald county.
The was q test case to decide the con-
stitutionality of the new law passed
by the legislature. enabling a defend.
ant to appeal from the regular judge
Of q district on the ground Of preju-
dice. and to claim a trial by a judge
to be elected by the members Of the
bar.
This is a parallel case to that Of
Daniel, lately tried in Warrensburg.
and its decision affects all cases Of that
nature. According to this decision,
there is no hope for any of those con-
demned. save by executive clemency.
In Able's case. however. on Monday
telegram was received from Governor
Phelps. by Ables attorneys. stating
that he respited him until January
Is. in accordance with the request Of
the attorneys who wish time to get up
a petition asking the governor to COM
mute the sentence to imprisonment
for life. Thus Able gets a few more
days.
In the Supreme Court of Missouri.
October term. 1877. State Of Mis-
souri,. Respondent. vs.. Appellant
from Jasper County Circuit Court.
John Able. Appellant.
OPTION OF THE COURT.
The defendant was indicted in the
Circuit Court of Mcdonald county AT
the June term, 1874. thereof for the
murder in the first degree in killing
one John NJ. Lane.
The venue Of the cause on apPlica.
ton Of the defendant was by order Of
said court made at its October term
1874. changed to Jasper county, in
which county defendant was put upon
his trial at the September term. 1877,
of the Circuit court Of said county
which resulted in his conviction foI
the crime charged in the indictment
Before the trial defendant presented
an application for continuance, which
was by the court Overruled, to which
exceptions were taken.
He also presented his petition and
affidavit for . change of venue upor
the ground that the judge was 81
prejudiced against him that he could
not obtain fair trial.
This application was adjudsed suf
6cient. and thereupon the judge mad,
an order in pursuance ut the act Oi
1877 (page $50 for an election Of :
special judge To hear and try tn,
cause. The election resulted in III,
choice of S. b. Williams, who pre-
sided in the cause and conducted thu
trial of the same.
During the trial the court over tn,
objection of defendant admitted TIN
evidence Of one William f1Olii,lay
given upon a former trial Of this caus'
as preserved in a bill of exceptions {,
he read to the jury. the sa,l Holli,la!
in the meantime having died. Tn
action IF the court in everything de
PENDANTS application for continuance
in refusing to award change of venu'
and in ordering the election Of ,
special judge to try the cause, and ia
admitting the evidence of the de
ceased Holiday, are the errors urge
upon our attention by the counsel fo
defendant.
The affidavit of defendant fails +
disclose such diligence in procurin.
the attendance or the evidence of tn
witness on account Of whose absenc
he based his application for continu
ance. He had no subpoena issued fo
one of them, and took no steps to TAX
the deposition of the other witnesse
who resided in Vernon county.
This cause has been pending sine
June, 1874, and in such cases the ap
plication for continuance should show
the utmost degree of diligence befor'
this court would be justified in inter
fering with the discretion of the tria
court in overruling it.
The affidavit not disclosing this de
gree Of diligence. there was no erro
in refusing to grant the prayer of it
and requiring defendant to submit to :
trial.
In support of the second ground o.
objection it is urged with much PIausi
bi!ity that the act Of the Legislature
authorizing the election Of q specia
Judge to try causes where the presid
ing judge Of the court is disqualified
BY reasons therein named is uncon
stitutional. It may be observed, q.
preliminary to the consideration o
the subject. that when We are asked "a
declare an act Of the legislature un
constitutional, which has been passed
with all the forms and ceremonie.
requisite to give it force. the question
should be approached with great eau
ton, and considered with the utmost
care and delib-ration. The nullity
and invali,lity Of such law must ap
pear beyond a reasonable doubt before
we can assume to pronounce it void
1t has been held by this court "that
no rule is better established than that
acts of the legislature are presumed "a
be constitutional until the contrary
plainly appears. and it is only when
they manifesily infringe on some
a. a. ~