State v. Bagges
| Decision Date | 25 March 1943 |
| Docket Number | 38241 |
| Parties | State v. Fred Bagges, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. Joseph J Ward, Judge.
Reversed and remanded.
Morris A. Shenker and Louis E. Zuckerman for appellant.
Over the objections of the defendant, the court revoked and set aside, during the trial of the case, and on the second day thereof, its order made at the start of the trial, directing that a writ of habeas corpus ad testificandum be issued to the Warden to produce as a witness for defendant, John Otto confined as a convict in the State Penitentiary. In this, and in refusing to declare a mistrial and to grant the defendant a short continuance thereafter, on account of such unexpected action of the court, defendant respectfully submits that the court was in error. And such action erroneously denied to the defendant his absolute constitutional right to have process to compel the attendance of witnesses in his behalf; denied his right to a fair and impartial trial; and a trial by due process of law. Art. II, Secs. 22, 30, Mo. Const.; Secs 1909, 1911, 1916, R. S. Mo. 1939; State ex rel. Rudolph, Warden, v. Ryan, 38 S.W.2d 717, 327 Mo. 728; Sec. 4007, R. S. 1939; State v. Owens, 259 S.W. 100; 22 C. J. S., p. 773, sec. 494b; State v. Berkley, 92 Mo. 41, 4 S.W. 24; 70 C. J. 35, sec. 5; State ex rel. Plummer v. Gideon, 119 Mo. 94, 24 S.W. 748; 70 C. J. 37, sec. 7; 22 C. J. S., sec. 504, p. 810; Simmons v. State, 126 S.W. 1157, 58 Tex. Cr. 574.
Roy McKittrick, Attorney General, and Lawrence L. Bradley , Assistant Attorney General, for respondent.
No error was committed in revoking the writ of habeas corpus ad testificandum, or in denying the request for mistrial made thereafter, or in compelling defendant to go to trial without the aid of said witness. Sec. 22, Art. II, Mo. Const.; Secs. 1909, 1911, R. S. 1939; State ex rel. Rudolph v. Ryan, 327 Mo. 728, 38 S.W.2d 717; 70 C. J., sec. 56, p. 65; 31 Am. Jur., sec. 430, p. 91; Gibson v. United States, 53 F.2d 721; 70 C. J., sec. 5, p. 36 (Note 38); 70 C. J., sec. 7, p. 37 (Note 53a); 70 C. J., sec. 8, p. 37; State v. McCoy, 111 Mo. 517, 20 S.W. 240; State v. Reed, 329 Mo. 203, 44 S.W.2d 31; Sec. 3952, R. S. 1939; State v. Cushenberry, 157 Mo. 168, 56 S.W. 737; State v. Woodward, 182 Mo. 391, 81 S.W. 857.
In the circuit court of the City of St. Louis, Missouri, the appellant was convicted of the crime of robbery in the first degree, and his punishment was assessed at imprisonment in the penitentiary for ten years.
On March 5, 1941, a man rang the doorbell of a residence located at 5261 Waterman Avenue, in St. Louis, and Mrs. Betty Howard answered the bell. He asked her if she was Mrs. Howard and then pushed her aside, and entered the house, followed by two men. He had a gun in his hand and forced her to lie down with her face to the floor. One of the other men was also armed, and he flourished his gun, advising that "This is a stick-up." Appellant demanded to know where her money was and she informed him it was in her pocketbook in the pantry. Mrs. Howard informed the robbers her son was in a back bedroom and while one of the three men stayed with her, appellant went after her son, brought him to the same room, and compelled him to lie on the floor with his mother. Appellant also got the maid, brought her in, and caused her to lie on the floor.
These men took $ 102.00 from Mrs. Howard's pocketbook, and then took three rings from her fingers which were valued at $ 1,000.00. Mrs. Howard, her son, and the maid testified the appellant was one of the men who participated in the robbery. The evidence was sufficient to sustain the verdict, and the trial court properly overruled the demurrers to the evidence. State v. Davis, 161 S.W.2d 973.
On the second day of the trial, the court revoked and set aside its order made just before the start of the trial, directing that a writ of habeas corpus ad testificandum be issued to the Warden of the Missouri Penitentiary to produce as a witness for appellant, John Otto, a convict confined in that institution.
The day the trial started, appellant filed the following application:
Section 1909, R. S. (Mo.) 1939, provides for the issuance of a writ of habeas corpus for the purpose of bringing before a court of record any person confined in a jail or prison to be examined as a witness in any suit or proceeding on behalf of the applicant.
Section 1911, R. S. (Mo.) 1939, reads:
"Further proceedings to obtain evidence -- An application for such writ shall be verified by affidavit, and shall state the title and nature of the proceeding in which the testimony of the prisoner is desired, the court or officer before whom pending, and that the testimony of such prisoner is material and necessary to the applicant on the trial or hearing of such suit or proceeding, as he is advised by counsel, and verily believes."
We think this application was a sufficient compliance with Section 1911, supra. It stated the action was "pending in this court," and from the caption of the application, we see it was "The Circuit Court of the City of St. Louis;" the cause of action was founded on the robbery and was made on behalf of the above named defendant, Fred Bagges; and John Otto, a prisoner in the State Penitentiary "is and will be a material and necessary witness for this defendant;" and it is sworn to by appellant's attorney.
Since the statute is silent as to the person by whom the affidavit shall be made, it may be made by the attorney who is familiar with the facts. 2 C. J. 927, Section 6. Moreover, since, on the hearing of the motion, the evidence shows that the attorney who made the affidavit...
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