State v. Bailey
| Decision Date | 05 March 1888 |
| Citation | 7 S.W. 425,94 Mo. 311 |
| Parties | The State v. Bailey, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. Ben. E. Turner, Judge.
Reversed and remanded.
J. W Howard for appellant.
(1) The court should have sustained defendant's motion and granted him a continuance. Rice v. Melendy, 36 Iowa 166; Jarvis v. Shacklock, 60 Ill. 378. (2) The court should not have allowed the prosecuting attorney to file counter-affidavits in the matter of defendant's application for a continuance. State v. Scott, 44 Iowa 93; Quincy Whig Co. v. Tillson, 67 Ill. 351; Manning v. Jamison, 1 Cranch, 66, 285; Linville v. Golding, 11 Ind. 285. (3) The court should have sustained defendant's motion for a new trial upon the ground of newly-discovered evidence. State v Alexander, 66 Mo. 148; State v. Lee, 66 Mo 165; Campbell v. People, 16 Ill. 17; State v. Sloan, 47 Mo. 604; Stokes v. People, 53 N.Y. 164.
B. G. Boone, Attorney General, for the state.
(1) (a) Generally considered, a motion for a continuance is addressed to the sound discretion of the trial court, and this will not be interfered with unless it appears to have been unsoundly or oppressively exercised. State v. Burns, 54 Mo. 274; State v. Sayers, 58 Mo. 585; State v. Lange, 59 Mo. 418; State v. Hollenscheit, 61 Mo. 302; State v. Fox, 79 Mo. 109; State v. Wilcon, 85 Mo. 134. (b) Absence of counsel as a ground for continuance is not favored by the courts, especially when it appears that defendant has not suffered prejudice or shown diligence. Wright v. State, 18 Ga. 383; Allen v. State, 10 Ga. 85; Greer v. Parker, 85 Mo. 107; Jacob v. McLean, 24 Mo. 40. (c) There is nothing to show that defendant was in any way prejudiced by the absence of the counsel, alleged to have been ill, or that the application for a continuance was improperly overruled. (2) The law of this state is silent on the filing of counter-affidavits to motions for continuance. This is a matter of practice within the discretion of trial courts. Unless it is shown that this discretion has been improperly exercised, it will not be disturbed. Riggs v. Fenton, 3 Mo. 28. (3) Evidence of uncommunicated threats are only admissible in evidence in cases of homicide, when it is shown that the deceased was the aggressor, or was making some effort to carry out the threats. State v. Downs, 91 Mo. 19; State v. Ryder, 90 Mo. 54.
The defendant, Bailey, was indicted under the provisions of Revised Statutes, 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.
I. 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.
II. 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.
III. Relative to the 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 of doing so, Bailey, who was some fifteen feet distant, began firing, one ball striking Horton on the left leg and glancing along the shoulder, another ball passing through his clothing, grazing his breast, and the third going through the nose of his mule.
If, on the other hand, the defendant is to be believed, Horton was the aggressor. When they met he accused Bailey of having clubbed his mules, and upon the latter denying it, called him a liar, and having a large bar of iron in his right hand began to dismount, whereupon Bailey told him not to come towards him with that iron, and when Horton got on the ground, fired the revolver into the air, and told him to stop; but he came around the head of the mule, when Bailey fired again, and when Horton came around the head of the mule and toward Bailey again, with the iron in his hand, Bailey fired the third and last shot, and when Horton got up, told him to go home, that he could kill him, but did not want to do it. Two witnesses, who were at work in the field, in full view of the...
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