State v. Bailey

• Decision Date: 05 March 1888
• Citation: 7 S.W. 425,94 Mo. 311
• Parties: STATE v. BAILEY.
• Court: Missouri Supreme Court

7 S.W. 425

94 Mo. 311

STATE v. BAILEY.

Supreme Court of Missouri.

March 5, 1888.

1. CRIMINAL LAW — CONTINUANCE — ABSENCE OF COUNSEL.

In a trial for an assault with intent to kill, it is not error to refuse defendant's motion for a continuance on the ground that counsel whom he had consulted was sick, and unable to attend the trial, there being nothing complicated in the case, and one of such attorney's partners, with another lawyer, being present, and trying the case; nor is it error to permit the prosecuting attorney to file counter-affidavits in opposing such a motion.

2. HOMICIDE — ASSAULT WITH INTENT TO KILL — NEW TRIAL — EVIDENCE OF PREVIOUS THREATS.

In a trial for an assault with intent to kill, where the principal question was, as to who was, the aggressor, on which point there was much testimony pro and con, held, that a new trial should be granted where new evidence is discovered that the wounded man had, on an occasion prior to the affray, threatened to kill the defendant, and that he would kill him before sundown.

Appeal from circuit court, Clark county; BEN E. TURNER, Judge.

J. W. Howard, for appellant. The Attorney General and T. L. Montgomery, for respondent.

SHERWOOD, J.

The defendant, Bailey, was indicted, under the provisions of section 1263, for an assault with intent to kill one Horton, by shooting him with a pistol. Being tried, he was convicted, and sentenced to imprisonment in the penitentiary for the term of two years and six months. The errors assigned are: (1) Refusal to grant a continuance of the cause, applied for on the ground of the sickness of one of the defendant's counsel; (2) permitting the prosecuting attorney to resist the granting of a continuance by filing counter-affidavits; (3) denying the motion of the defendant for a new trial, which was based upon the ground of newly-discovered evidence.

1. There was no error in denying the defendant a continuance. It is true that the counsel he had consulted in the cause was prevented from attending at that term of court, owing to illness; but the facts of this case were few and simple, and, besides, the particular attorney who was consulted was a member of a firm of lawyers, known as Matlock, Hiller & Howard, one of which firm, assisted by another attorney, defended the defendant on the trial. If it reasonably appeared that defendant had suffered any prejudice in consequence of his application in this behalf being denied, a different question might arise; one not now before this court.

2. Nor was error committed in allowing the prosecuting attorney to file a counter-affidavit. There being no statute governing this point of practice, it was long ago ruled by this court that it was within the discretion of the trial court to permit the filing of counter-affidavits. Riggs v. Fenton, 3 Mo. 28. It is true, in that case, the application for a continuance was grounded on the absence of a witness; but this does not affect the principle.

3. Relative to third error assigned: In this case it is difficult to tell who was the aggressor. If Horton, the prosecuting witness, and Morrison, who was with him at the time of the shooting, are to be credited, Bailey, the defendant, was the assailant, and the only one to blame in the matter. Their story, in brief, is that Horton and Morrison were riding two mules of the former, who had a bar of iron in his right hand, when they met Bailey walking, and, upon Horton asking Bailey if he had clubbed his mules, he called him a d____d liar, ordered him to get off the mule; and while he was in the act...