State v. Bradley

• Decision Date: 06 December 1886
• Citation: 90 Mo. 160,2 S.W. 284
• Parties: STATE v. BRADLEY.
• Court: Missouri Supreme Court

2 S.W. 284

90 Mo. 160

STATE v. BRADLEY.

Supreme Court of Missouri.

December 6, 1886.

CONTINUANCE — WHEN GRANTED — ABSENCE OF MATERIAL WITNESS — REV. ST. MO. § 1883.

Where one under indictment for assaulting and cutting with a knife, on his case being called for trial, makes application for a continuance on the ground of the absence of a material witness, and the affidavit on which the application is based fulfills the requirements of section 1883, Rev. St. Mo., and the evidence it is claimed the absent witness would give is material, and the application the first one made, the court abused its discretion in overruling the application. This position is strengthened by the fact disclosed by the record that at the trial defendant and one witness testified to the same effect that it is claimed the absent witness would, while the complaining witness and his brother testified directly opposite to them, thus making the evidence of the absent witness of the highest importance.

Appeal from circuit court, Greene county.

Indictment for assault.

The Attorney General, for the State. J. M. Patterson, for appellant.

NORTON, J.

Defendant was indicted in the Greene county circuit court at its November term, 1883, and charged with assaulting and cutting one Petty with a knife. He was arraigned at the May term, 1884, of said court, and put upon his trial, and convicted, and a fine of $100 assessed as his punishment. When the case was called for trial defendant presented the following application for continuance, which was overruled, and the trial ordered to be proceeded with.

The application for continuance is in these words: "Thomas Bradley, being sworn, states that he cannot safely go to trial at this term of court for the want of material testimony that is absent without his connivance, consent, or approval, and that this application is not made for vexation or delay, but for the purposes of justice; and that, if a continuance be granted him, he can, as he verily believes, procure said testimony by the next term of this court. The name of the absent witness is Walter Billings, who has, up to within two months, lived in Greene county near this affiant. At that time he moved into the city of Springfield, and affiant has been under the impression all the time that he still lived in said city. Affiant caused a subpoena to be issued for him a few days ago, and placed same in the hands of the sheriff of Greene county, and hourly believed that the sheriff would find and serve him immediately with said subpoena, but on yesterday evening affiant was informed by the sheriff that he could not find said Walter Billings; that if the said witness was here he would testify as follows: `My name is Walter Billings. I know Arch Petty and the defendant. ...