23 S.W. 771 (Mo. 1893), The State v. Maddox

Citation:23 S.W. 771, 117 Mo. 667
Opinion Judge:Gantt, P. J.
Party Name:The State v. Maddox, Appellant
Attorney:R. P. Giles for appellant. R. F. Walker, Attorney General, Morton Jourdan, assistant, and B. T. Hardin for the state.
Judge Panel:Gantt, P. J. Burgess and Sherwood, JJ., concur. Burgess and Sherwood, JJ., concur.
Case Date:November 09, 1893
Court:Supreme Court of Missouri
 
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Page 771

23 S.W. 771 (Mo. 1893)

117 Mo. 667

The State

v.

Maddox, Appellant

Supreme Court of Missouri, Second Division

November 9, 1893

Appeal from Shelby Circuit Court. -- Hon. T. H. Bacon, Judge.

Reversed and Remanded.

R. P. Giles for appellant.

(1) The court erred in refusing the defendant a continuance. He had shown due diligence and the testimony was material to his defense, and it was a clear abuse of the trial court's discretionary power and should not be upheld nor indorsed. (2) Instructions numbered 4 and 5, defining reasonable doubt, are confusing and are open to the objection of emphasizing the "mere possibility of innocence," and instruction number 6 should not have been given, because it fritters away the benefits of the presumption of innocence. (3) The court erred in giving the instruction number 8 upon casual statements of defendant and refusing the instruction asked by the defendant upon that subject. State v. Glahn, 97 Mo. 579; State v. Moxly, 102 Mo. 374. (4) Instruction number 10, informing the jury that United States treasury notes are not taxable, should not have been given. (5) The court ought to have given an instruction on the question of alibi, which was a defense supported by the evidence of a number of witnesses, and raised a question of law requiring an instruction for the information of the jury in giving their verdict. State v. Lewis, 69 Mo. 92; State v. Howell, 100 Mo. 628; State v. Edwards, 109 Mo. 315. (6) It was the duty of the court to instruct the jury on all questions of law arising in the case, which were necessary for their information in giving their verdict. Revised Statutes, 1889 sec. 4208; State v. Henson, 106 Mo. 66; State v. Patrick, 107 Mo. 147; State v. Palmer, 88 Mo. 568. (7) The evidence is not sufficient to support a conviction. (8) The court ought, for the above reasons, to have granted a new trial and for failing to do so, the case ought to be reversed. (9) The indictment is defective in that it does not state facts suficient to constitute any offense under the laws of Missouri.

R. F. Walker, Attorney General, Morton Jourdan, assistant, and B. T. Hardin for the state.

(1) The appellant's application for continuance was properly overruled. Appellant showed absolutely no diligence in trying to secure the testimony of the absent witness. State v. Dusenberry, 112 Mo. 277, loc. cit. 290; State v. Carter, 98 Mo. 176; 104 Mo. 403. Nothing in the physician's certificate shows that the deposition of the witness could not have been taken, and all intendments are taken against the statements in the application. State. v. Pagels, 92 Mo. 300. (2) It was largely in the discretion of the trial court to pass upon appellant's application for continuance, and this court will not interfere with such discretion in overruling such applications, unless that discretion has been unsoundly or oppressively exercised and abused. State v. Carter, 98 Mo. 176; State v. Day, 100 Mo. 242; State v. Parker, 106 Mo. 217. (3) "Every presumption will be indulged in favor of the correctness of the action of the trial court, particularly in granting and refusing continuances." State v. Gamble, 108 Mo. 500-505. (4) Again, the counter-affidavits of three witnesses were before the court, showing that the absent witness was walking around home and on the streets at the time of the trial. State v. McCoy, 111 Mo. 517. (5) The record shows that the court, "on its own motion," gave instructions numbered 1 to 11, inclusive. Appellant's motion for new trial says that those numbered 6 and 10 were given as asked by the state. Said motion, however, is no evidence of the statements therein made. State v. McDaniel, 94 Mo. 301. There would be no difference, however, in legal effect. Appellant asked but one instruction, which was refused, and another numbered 8 substituted, which, in law, is much more favorable to appellant than the one asked in his behalf. In argument, it may not be considered so good a speech to the jury. All the law in the instruction asked is embraced within the one given, and no error was committed in refusing the one. State v. Walton, 74 Mo. 271; State v. Mathews, 98 Mo. 119; State v. Moore, 101 Mo. 317; State v. Mounce, 106 Mo. 226. Besides, it should have been refused, because little more than an argument to the jury. (6) There was no reversible error in the instructions given by the court.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

[117 Mo. 669] Gantt, P. J.

The defendant was indicted by the grand jury of Ralls county on the twenty-fourth of March, 1891, together with Frank Whitecotten, for robbery in the first degree of John L. McElroy on the night of the twenty-first day of December, 1890. The [117 Mo. 670] 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

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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 fifth day of September, 1892.

[117 Mo. 671] "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 fifteenth 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 C. 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...

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