State v. Able

• Decision Date: 30 April 1877
• Parties: STATE OF MISSOURI v. ABLE, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 37

STATE OF MISSOURI

v.ABLE, APPELLANT.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jasper Circuit Court.--JOSEPH CRAVENS, Judge.

W C. Robinson and H. B. Johnson, for appellant.

J. L. Smith, Atty. Gen., for respondent.

NORTON, J.

The defendant was indicted in the McDonald Circuit Court, at its June term, 1874, for murder in the first degree, in killing one John L. Lane. At the October term, 1874, of said court, on defendant's application, a change of venue was awarded to the Circuit Court of Jasper County, in which latter court, at its March term, 1875, defendant was put upon his trial, which resulted in a verdict of guilty. Motions for new trial and in arrest of judgment were in due time filed, and being overruled, defendant brings the case here by appeal. The grounds relied upon for a reversal of the judgment are, that the court erred in overruling defendant's application for a continuance; that the record does not show the arraignment of prisoner and his plea of not guilty before the jury were sworn; that improper evidence was admitted on the trial; that improper instructions were given and proper instructions refused; that the record does not show that the prisoner was present during the progress of the trial. If the last reason assigned exists in point of fact, it will necessitate a reversal of the judgment, and obviate the necessity for a consideration of the objection to the action of the court in refusing a continuance and having the jury sworn before arraignment and plea of not guilty was entered. The record shows that, on the 13th day of March, the jury was sworn, and the further trial continued till the next day, at which time, it being the fourteenth of March and the sixth judicial day of the term, the trial, not being completed, was continued till Monday the fifteenth of March. No further notice, after the continuance on the 14th, is taken, either of the jury or defendant, till the 18th day of March, at which time the jury returned their verdict. The record does not show that the trial was proceeded with on Monday, the 15th of March, or at what time the trial was closed or the jury retired to consider of their verdict. However well this case may have been tried in other respects, the condition of the record is such that, under repeated decisions of this court, the judgment rendered cannot be allowed to stand. 20 Mo. 55, 25 Mo. 167, 28 Mo. 332, 31 Mo. 147, 36 Mo, 397, 49 Mo, 326, 57 Mo. 40, 59 Mo. 154, 61 Mo. 232.

It ought...