State v. Maddox

• Citation: 23 S.W. 771,117 Mo. 667
• Parties: STATE v. MADDOX.
• Decision Date: 09 November 1893
• Court: United States State Supreme Court of Missouri

23 S.W. 771

117 Mo. 667

STATE v. MADDOX.

Supreme Court of Missouri, Division No. 2.

November 9, 1893.

CRIMINAL LAW — CONTINUANCE.

It is error to refuse an application by defendant for a continuance of a trial for robbery in order to procure the attendance of a witness by whom defendant expects to prove an alibi, where the witness is too ill to attend court or to have her deposition taken, and the principal question in the case is the identification of defendant as the robber.

Appeal from circuit court, Shelby county; Thomas H. Bacon, Judge.

Morgan Maddox was convicted of robbery, and appeals. Reversed.

R. P. Giles, for appellant. R. F. Walker, Atty. Gen., Morton Jourdan, Asst. Atty. Gen., and Ben. T. Hardin, for the State.

GANTT, P. J.

The defendant was indicted by the grand jury of Ralls county on the 24th of March, 1891, together with Frank Whitecotten, for robbery in the first degree of John L. McElroy, on the night of the 21st day of December, 1890. The defendants were arraigned at the same term, and by consent the cause was continued to the August term, which commenced August 24, 1891. At that term a change of venue was awarded to Shelby county. At the November term, 1891, of the Shelby circuit court a severance was granted, and the case as to the appellant, Morgan Maddox, was continued by order of the court of its own motion to the next term of court. At the April term, 1892, owing to the impassable condition of the roads, the entire docket was continued to June of that year. At the June session this cause was by mutual consent continued to Monday, September 5, 1892, at the adjourned term. At that time defendant Maddox filed the following application for a continuance:

"In the circuit court of Shelby county, Missouri, April term, 1892. The defendant Morgan Maddox comes and moves the court to grant him a continuance in this cause to the next term of this court, and as grounds for this motion, states the following:

"First. That Champ Clark, an attorney at law, is one of the counsel for this defendant in this cause, and has been such counsel ever since the indictment in this cause was found, and that said Champ Clark, as such counsel, is in charge of portions of the work in making the defense in this cause which were peculiarly in the charge and knowledge of said Clark. That said Clark is a resident of the city of Bowling Green, in Pike county, Missouri, and is a member of the bar at that place, and has a large practice as such attorney in the circuit court of said Pike county. That the regular September term, 1892, of said Pike circuit court, is begun on this day, to wit, the 5th day of September, 1892. That the docket of said circuit court of Pike county is set so that there are a great many of the cases in which said Clark is of counsel set for trial on every day, beginning with this day, and ending on the 15th day of September, 1892. That said cases in which said Clark is engaged as counsel are important cases, and by reason of said employment of said Clark in said cases in said Pike circuit court he, the said Clark, cannot be present at the trial of this cause at the present term of this court; and that, if the defendant is compelled to go to trial without the presence and aid of said Clark as such counsel, a great and material harm would be done this defendant, and this defendant would be deprived of the means of making a full and fair defense in this cause.

"Second. The defendant states that Malinda Maddox, the wife of the defendant Morgan Maddox, is a material witness on behalf of the defendant, Morgan Maddox, in this cause. That her residence is at the town of Huntington, in Ralls county, Missouri, where she now is. That on the night of the 25th day of August, 1892, the said Malinda Maddox, had an abortion or miscarriage, about twelve o'clock on said night. She then had a severe chill, and her temperature arose to 105 degrees, her pulse was 150, she showing and having all the symptoms of septicaemia, resulting from the absorption of a putrid foetus and its membranes. She is now confined to her room, and nearly all the time in her bed, under the order of her physician, and it is the opinion of her physician, S. Mattox, a regular registered and practicing physician, who is now attending her, and who has been attending her since the time of the said abortion, that it would not be safe for her, under the most favorable circumstances, to leave her home under six weeks from the time said abortion took place. And this affiant says her condition is such that it would not be safe under the most favorable circumstances for her to leave her home and be present at the trial of this cause under six weeks from the time said abortion took place. This affiant further says that said Malinda Maddox has been so ill ever since said abortion that she could not give her deposition in this cause without endangering her life. That this cause was set for trial in this court in November, 1891, at the October term, 1891, of this court, on the 23d day of November, 1891. That this defendant caused a subpoena to be issued from the office of the clerk of this court on the 13th day of November, 1891, for said Malinda Maddox, and placed said subpoena in the hands of the sheriff of Ralls county, Missouri, for service on said witness. That said subpoena was duly served on said Malinda Maddox, during said trial, by the said sheriff, on the 25th day of November, 1891, in Ralls county, Missouri, and that said Malinda Maddox obeyed said subpoena, and appeared in this court at said time in this cause, and, after a severance as to the defendants, Maddox and Whitecotten, testified on behalf of the codefendant, Frank Whitecotten, on his trial at said term of this court, and that the trial of this cause had been by this court regularly continued from the said last-mentioned term until this time, and it was the duty of said witness, under the statute, to attend as a witness on behalf of this defendant on the trial of this cause at the time without further subpoena. That said Malinda Maddox will testify on the trial of this cause, if present, as follows: `I am the wife of the defendant Morgan Maddox, and was his wife on the 21st day of December, 1890, at the time of the alleged robbery of Leland McElroy, and was living with said Maddox as his wife at his home in the town of Huntington, Mo., about one and a half miles from the place of said alleged robbery.' That she was at home all of the afternoon and evening and night of said December 21, 1890. That this defendant, at the hour of six o'clock in the evening of said December 21, 1890, was present at his and her home in said town of Huntington, and took supper there shortly after said hour, and that said Morgan Maddox remained at their said home from said hour of six o'clock on said evening until the hour of eight o'clock on the night of said December 21, 1890, at which last-mentioned time Maje Maddox announced to the witness and said Morgan Maddox at their said home that Leland McElroy had been robbed on said night, except for a space of time not exceeding twenty minutes, and that during said twenty minutes said Morgan Maddox went to the barn at their home, saying that he, said Morgan Maddox, was going to attend to their horses. That said Morgan Maddox was not absent from said house longer than said space of twenty minutes from said hour of six o'clock until after said Morgan Maddox was notified at his home of said robbery. That the testimony of Leland McElroy and Mary McElroy, who are in attendance on this court as witnesses for the prosecution in this cause, will be that said robbery of said Leland McElroy, with which said defendant stands charged, occurred between the hour of six o'clock and eight o'clock on said December 21, 1890, in the evening of said day, about one and a half miles from the said home of the said defendant. That the testimony of said Malinda Maddox, as above set forth, tends to prove and does prove a complete alibi for this defendant as to said robbery. That the testimony of said Leland McElroy, as the prosecuting witness in this cause, will be that said Morgan Maddox was present at the time and place of said robbery, participating therein. That the testimony of Malinda Maddox, as above set forth, is material to the issue of this cause on behalf of the defendant, Morgan Maddox. That this defendant has used due diligence to obtain the testimony of said witness Malinda Maddox on this trial of this cause. That the testimony of said witness can be procured on the trial of this cause by and at the next term of this court, and that said Malinda Maddox will prove facts as above set forth; and this defendant believes said facts, as above set forth as said witness' testimony, are true, and that this defendant is unable to prove said facts by any other witness whose testimony can be as readily procured; and that said witness, Malinda Maddox, is not absent by the connivance, procurement, or consent of this defendant, and that said Malinda Maddox, is absent from this trial solely because said witness, Malinda Maddox, is sick, and unable to attend at the trial of this cause, and that this application for continuance is not made for vexation or delay merely, but to obtain substantial justice on the trial of this cause. [Signed] Morgan Maddox."

"State of Missouri, County of Shelby — ss.: Morgan Maddox, the above-named defendant, being duly sworn on his oath that the facts stated in the foregoing application for a continuance are true. [Signed] Morgan Maddox."

"Subscribed and sworn to before me this September 5th, 1892. [Signed] Frank Dimmitt, Clerk."

The circuit court overruled the application, and defendant was put upon his trial, and was convicted and sentenced to the penitentiary for nine years.

The evidence tended to prove that John L. McElroy, who was robbed, was then about 76 years of age, and lived on his farm in Ralls county, Missouri, about one and a half...