McKay v. State

Decision Date31 October 1849
Citation12 Mo. 492
PartiesBURT MCKAY v. THE STATE OF MISSOURI.
CourtMissouri Supreme Court

APPEAL FROM JEFFERSON CIRCUIT COURT.

BEAL & PIPKIN, for Appellant.

1st. The court below erred in setting aside the order of continuance, and setting the case for trial on the 18th December. There are only two regular terms of the court in Jefferson county--4th Mondays of May and November. Rev. Stat. p. 325, § 25. After the court, on the 28th November, ordered a general continuance to the next term, the cause stood continued to the 4th Monday in May, 1849, and the jurisdiction had passed from the court, and the cause stood over as any other cause. The court could not resume its jurisdiction by setting aside the continuance on the 30th, for it would be inflicting the greatest injury upon a party, if such arbitrary power were given at the pleasure of the court, the law regulating changes of venue in criminal cases (Statute, p. 877, § 34), is different from all other cases. The witnesses, after removal of the cause, are compelled to attend at the time and place of trial in the county to which it is removed; and if the order of removal is made in term time, it is notice to the witnesses. In this case after the continuation of the cause on the 28th, the defendant's witnesses had left the court, and gne to distant counties, and could, by no means, know of the continuance being set aside, and of course no notice to them--here is the great hardship of the case. The statutes permit a called term of the court to try prisoners confined in jail, and a prisoner to be tried, yet, in that case, a notice has to be given, and a grand jury summoned, &c., before any jurisdiction attaches. The law of continuance in criminal cases, is the same as in civil cases, and in this latter suit a continuance is from the term to the next term, or any subsequent term, so that after a continuation is entered of record, the suit stands over, the witnesses disperse, and the suit is at an end for that term. 2nd. The court erred in overruling the defendant's motion for a continuance made at the adjourned term. McLane v. Harris, 1 Mo. R. 700; Riggs v. Fenton, 3 Mo. R. 28; Moore & Porter v. McCullough, 6 Mo. R. 444; 8 Mo. R. 500, 606; Darne v. Broadwater, 9 Mo. R. 19. 3rd. There was no ownership of the money alleged to have been stolen proven as the property of Timberlake. The ownership of property is always material, and from the evidence Timberlake had no claim to the money and never took any steps to reduce it to possession. On the contrary if we can infer anything, it would be presumed to be money of the owners of the steamboat in whose employ the negro was at the time, and had been previously. If there was a doubt whose money it was, it should have been charged in the indictment as the property of a person unknown to the grand jury. The owner of the slave had not been in possession of the money, the negro was hired out at the time. It is fairly deducible from the evidence, that the persons who hired the negro were his owners for the time being, and the indictment should charge the fact accordingly, that they were entitled to the wages and earnings of the slave. Rex v. Rudick, 8 Car. & Payne, 273; Com. Law R. No. 34, p. 368. The possession of a servant is the possession of his master, but this is only in cases where the master has been in possession of property, or it has been delivered to the slave for the master. The court erred in giving the instruction for the State on this point, as there was no evidence to support the instructions, and the master of the negro never reduced the money to possession, actually or constructively, but abandoned all claim he might have had and has never been in possession actually of the slave since he was hired to the steamboat, and not for some time previous to the alleged offense. 2 Starkie, 607-8. “Therefore, unless the prisoner, whose property is alleged to have been stolen, be either actually or constructively in possession, the taking cannot amount to larceny.” There was no evidence of either an actual or constructive possession in Timberlake. A constructive one cannot arise here, as the slave was hired out at the time, and the money was not actually Timberlake's by any delivery from Timberlake, or from any one else for Timberlake's benefit, but on the contrary he abandoned any ownership that might arise, and if any could arise, it was in the master for the time being--the steamboat and his employers. They were entitled to his wages and labor and earnings.

RYLAND, J.

The appellant, Burt McKay, was indicted with one Hugh Gillespie, in the St. Louis Criminal Court, for grand larceny, at the July term, 1848. To this indictment the defendant, the present appellant, plead “not guilty,” so did Hugh Gillespie. They also prayed for a separate trial, and filed their petition for a change of venue. The court ordered a separate trial, and changed the venue to the Circuit Court of Jefferson county, in the ninth judicial circuit of this State.

At the regular term of the Circuit Court for said county of Jefferson, begun on the fourth Monday, being the 27th day of the month of November, 1848, the following proceedings were had, as appears from the record in this case:

“TUESDAY, November 28, 1848.

State of Missouri
)
vs.
)
Indictment for grand larceny.
Burt McKay and Hugh Gillespie.

)

And now upon the motion of the attorney for the State, this cause is continued to the next term of this court, and upon the motion of the attorney for said defendants, it is ordered by the court, that said defendants, Burt McKay and Hugh Gillespie be remanded to the common jail of St. Louis county, and that the sheriff of Jefferson county, convey the bodies of the said defendants to the said county of St. Louis, and there deliver them to the keeper of said common jail of said county of St. Louis.

THURSDAY, November 30, 1848.

State vs. Burt McKay and Hugh Gillespie.

Be it remembered, that on Thursday, November 30th, the couusel for the State moved the court to set aside the order for the continuation of this cause, and set the cause for trial, showing to the court that he had notified the defendant's counsel of this application, and stating that his only witness had arrived in town, and was now in the last stages of consumption, and would not probably live to the next term; and further, that Col. Field was yet in town, whereupon Capt. Jno. D. Stephens n, as the friend of Mr. Field, he having left the court, and making preparation to return to St. Louis, presented and read to the court the following affidavit:

State vs. McKay and Gillespie.

This day personally appeared in open court, A. P. Field, who being duly sworn, deposes and says that he is the only counsel employed to defend the above persons, that he is in possession of the facts of their case; that their cases have been continued until the next term, that they were set for trial on Tuesday: he further states that he is employed in several important criminal cases in the St. Louis Criminal Court, some of them where he is the only counsel, several of them set for trial on to-morrow, which compels him to leave this morning for St. Louis: he further states that for the last two days he has been laboring under severe indisposition, so much so that he is entirely unable by reason of said indisposition to attend to the defense of said McKay and Gillespie, and that for the reasons aforesaid, as well as others, he objects to the setting aside the continuance.

A. P. FIELD.

Sworn to and suoscribed in open court, November 30th, 1848.

T. H. ALFORD, Clerk.

Whereupon the court set aside the continuance, and made an order setting the cause for trial, to-wit:

State vs. McKay and Gillespie.

And now it is here considered by the court, that the order of continuance and the order of transmission of said defendants to the common jail of St. Louis county made herein, be set aside, and said cause is set for trial on the 18th day of December next, and it is ordered that said defendants and their counsel be notified thereof.”

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16 cases
  • State v. Schooley
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1929
    ...... as requested by the defendant, for the reasons set out in the. several affidavits filed by the defendant for a continuance. State v. Maddox, 117 Mo. 667; State v. De. Witt, 152 Mo. 76; State v. Hesterley, 182 Mo. 16; State v. Klinger, 43 Mo. 127; McKay v. State, 12 Mo. 492; Sec. 3997, R. S. 1919. (2) The. Supreme Court reserves the right to inquire into the facts of. each case and reverse the case if the continuance was. improperly refused. McLane v. Harris, 1 Mo. 501;. Riggs v. Fenton, 3 Mo. 28; Tunstall v. Hamilton, 8 Mo. 500; ......
  • State v. Bryant
    • United States
    • United States State Supreme Court of Missouri
    • November 28, 1887
  • State v. Schooley
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1929
    ...State v. Maddox, 117 Mo. 667; State v. De Witt, 152 Mo. 76; State v. Hesterley, 182 Mo. 16; State v. Klinger, 43 Mo. 127; McKay v. State, 12 Mo. 492; Sec. 3997, R.S. 1919. (2) The Supreme Court reserves the right to inquire into the facts of each case and reverse the case if the continuance......
  • State v. Parker
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1891
    ...Hon. C. A. Anthony, Judge. Affirmed. H. S. Kelley for appellant. (1) The court erred in refusing to continue or postpone the trial. McKay v. State, 12 Mo. 492; Rice v. Melendy, 36 Iowa 166; State v. Lewis, 74 Mo. 222; State v. Walker, 69 Mo. 274; State v. Loe, 98 Mo. 609. Sickness of counse......
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