23 S.W. 1079 (Mo. 1893), The State v. Banks

Citation:23 S.W. 1079, 118 Mo. 117
Opinion Judge:Burgess, J.
Party Name:The State v. Banks, Appellant
Attorney:R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.
Case Date:November 21, 1893
Court:Supreme Court of Missouri
 
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Page 1079

23 S.W. 1079 (Mo. 1893)

118 Mo. 117

The State

v.

Banks, Appellant

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Johnson Criminal Court. -- Hon. John E. Ryland, Judge.

Affirmed.

R. F. Walker, Attorney General, and Morton Jourdan, Assistant Attorney General, for the state.

(1) The uncontradicted testimony of all the witnesses, save the defendant, presents a case of murder in the first degree, and establishes the guilt of defendant of that offense beyond all question, and the court was authorized under that testimony to submit the question of defendant's guilt or innocence to the jury, and hence the suggestion of appellant's counsel in their motion for a new trial, that the verdict is against, and unsupported by, the testimony, is not well taken, and must be determined against them. State v. Orrick, 106 Mo. 111; State v. Moxley, 115 Mo. 644; State v. Jackson, 106 Mo. 181. (2) No error was committed by the trial court in overruling defendant's application for a continuance. State v. Dusenberry, 112 Mo. 277; State v. Sneed, 91 Mo. 552. There must be, and is, accorded to the trial judge largely the discretion of passing upon the application of a defendant for a continuance, and unless it clearly appears that this discretion has been abused, this court will not interfere. State v. Gamble, 108 Mo. 500; State v. Marshall, 115 Mo. 383; State v. Steen, 115 Mo. 474; State v. Carter, 98 Mo. 176. As to the witness Frazier, the record shows that he was brought into court and tendered to defendant; that the court announced to the defendant's counsel that the witness was present, and they would be permitted to examine him; this they declined to do.

OPINION

[118 Mo. 119] Burgess, J.

-- Defendant was convicted at the April term, 1893, of the criminal court of Johnson county, of murder in the first degree for shooting with a pistol and killing one Isaac Palmer at Sedalia, Pettis county, on the twenty-ninth day of August, 1892. The indictment was found in the latter county where the offense was committed, and the venue subsequently changed on the application of defendant to the criminal court of the county of Johnson.

At the April term, 1893, of the Johnson criminal court, the defendant filed his third application for a continuance on the ground of the absence of witnesses and the second application on account of the absence of one John Williams and one Nelson Frazier, which was by the court overruled. An attachment was issued for Frazier and he was brought into court during the trial. The case is here on defendant's appeal. No...

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