State v. Harrison
| Decision Date | 28 May 1926 |
| Docket Number | 26998 |
| Citation | 285 S.W. 83 |
| Parties | STATE v. HARRISON et al |
| Court | Missouri Supreme Court |
Albert S. Ennis, of Festus, for appellants.
North T. Gentry, Atty. Gen., Claud E. Curtis and A. M. Meyer, Sp Asst. Attys. Gen., for the State.
The defendants were charged by information in the circuit court of Jefferson county with burglary and larceny. They were found guilty March 19, 1925, and punishment of each assessed at 7 years in the penitentiary for burglary in the second degree, and 4 years in the penitentiary for larceny. Judgment accordingly, from which the defendants appealed.
The evidence offered by the state shows that January 23, 1925 the store of the Walther-Couch Mercantile Company, in De Soto, was broken into, and goods of the value of about $ 3,000 taken. Entry was made through a window at the back of the store. The iron bars on one of the windows had been cut and bent, and entrance into the store effected through the opening thus made; the door to the store was opened from the inside. W. A. Couch, who appeared to be the owner, testified that when he opened the store in the morning he found that condition. The defendants were arrested February 3, 1925, at 3140 Washington avenue, St. Louis, a place described as a 'beer joint.' In the pocket of Robert Harrison was a receipted bill for hauling household goods, with the address 5973 Bancroft avenue. The defendants, when arrested, were questioned by the police about their names and occupations. Harrison said his name was Bob McGuire, had just arrived in St. Louis, and was a perfect stranger. Harris said he had just come from Oklahoma, and had no home in St. Louis. The officers went to the address, 5973 Bancroft, and found that Harrison with his wife, mother-in-law and brother-in-law lived at that place. Joe Harris had a room there. There they found goods valued at about $ 2,000, later identified by Mr. Couch as having been taken from the store of the Walther-Couch Mercantile Company. In the house they found also some mechanic's tools, including a bolt cutter, which evidence tended to show could have been used in cutting the bar on the window of the store from which the goods were taken.
The prisoners were taken to the police station and there questioned separately by the officers. Harrison said that he and Harris drive two automobiles to De Soto, to the back of the Walther-Couch store, where Harris effected an entrance through the window. They loaded the goods into the cars and brought them to St. Louis. After Harrison had made the statement, Harris was brought in, and, when told that Harrison had admitted the burglary, he said he 'didn't think Harrison was damned fool enough to kick in with it,' and that he 'might as well kick in too.' He then admitted the burglary.
The defense was alibi. Each of the defendants testified that he was at home at 5973 Bancroft avenue the night the burglary was committed; that they bought the goods which were found in their house from a man named Long, whose address they did not know, for $ 500 and paid down $ 100; that Long left a Studebaker car at their home, was to return for the balance of his money, and to get his car, but never came back,
Harris testified that he was an automobile mechanic and service car driver, and worked for Charlie Harrison. Robert Harrison testified that he was an automobile mechanic and worked at Keys Summit; that the tools which were found in the house were used in their business. Evidence was offered by defendants for the purpose of showing good character and reputation.
I. Appellants assign error to the action of the court in overruling their application for a continuance filed March 19, 1925. Three different grounds were set up in the application, each of which, the appellants say, required the court to grant their prayer. The first was that the defendants had employed a St. Louis attorney to represent them; that said attorney had consulted with them, but about March 14th, five days before the filing of the application, they learned that through illness or other reason their attorney had withdrawn from the case; that said attorney previously, without avail, had tried to secure the services of other attorneys; that as soon as possible thereafter said defendants sent for their attorney, Albert S. Ennis, who represented them, and said Ennis had not had time properly to prepare the case for trial.
The granting of a continuance is largely within the discretion of the trial court. In this case the judge had the parties before him and knew the circumstances concerning the appearance of attorneys in his court, representing the defendants. We can find no reason for believing that the court abused his discretion in overruling the application on that ground. The application sets up no particular difficulties which would prevent an attorney from making proper preparation from the time he was employed until the time of the trial.
The second ground for the continuance was the absence of three material witnesses, Mrs. Martha Stewart and James Stewart and Mrs. Edna Harrison, residing at 1768 Mississippi avenue, St. Louis. A subpoena had been issued for them and returned non est on the day the application was filed. It is said in the application that these three witnesses would support the defendants' alibi by swearing that they were elsewhere at the time the crime was alleged to have been committed. No diligence to secure these witnesses, other than the issuance of a subpoena, was shown. Edna Harrison was the wife, Martha Stewart the mother-in-law, and James Stewart the brother-in-law of Harrison. They lived in the same house with him on Bancroft avenue, but after the arrest moved to the address last mentioned. The application shows no reason why the defendant was unable to keep track of the members of his own family and to see that they were present at the trial. It is not always a sufficient showing of diligence merely to say that a subpoena was issued and not served.
The third ground alleged for the continuance was the absence of two witnesses by whom the defendants expected to prove good characters and reputations. It is stated in the application that subpoenas were issued for those witnesses, but it is not stated that the process server failed to find them, nor any other reason advanced why their attendance could not be procured. The trial court was entirely within the limits of sound discretion in overruling the application for continuance.
II. Appellants complain because the trial court, in qualifying the jury, refused to allow them to interrogate the members of the panel separately and individually. In that matter the record shows that this occurred.
'The Court: Can't you address these gentlemen collectively, Mr. Ennis?
'Mr. Ennis: I can if the court prefers me to do that.
'The Court: There is no use taking up two or three hours investigating a man that you ought to know.
'Mr. Ennis: I except to the ruling of the court.
'The Court: It seems to me there ought to be some way of conserving time.
'Mr. Ennis: I except to the ruling of the court.'
This excerpt from the record shows merely that the judge made a suggestion to which defendants' counsel acceded without protest. There was no demand, nor even a request, by defendants' counsel to be permitted to examine the panel individually. No ruling of the court denied any such right. It looks as if counsel was not attempting to enforce a right, but to work an error into the record. This assignment is overruled.
III. It is complained that the court erred in admitting, over the defendants' objection, the testimony of officers regarding the place where defendants were arrested. Officer Klugg, who assisted in the arrest at 3140 Washington avenue said that the place was a beer joint and a house of prostitution. On objection of defendant, that statement was stricken out. The witness also stated that it was a place where liquor was sold...
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