State v. Bates
| Decision Date | 31 May 1904 |
| Citation | 81 S.W. 408,182 Mo. 70 |
| Parties | THE STATE v. BATES, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.
Affirmed.
Newton & Kreider for appellant.
Edward C. Crow, Attorney-General, and C. D. Corum for the State.
(1) The application for a continuance was properly overruled. It does not comply with the statute in that it does not show that due diligence was used to obtain the testimony of the witnesses. It does not show that defendant believed to be true the statements which he alleged he could prove by the witnesses it does not show that he is unable to prove the facts alleged therein by any other witness whose testimony could be as readily procured. It does not show that the witness is not absent by the connivance, procurement and consent of defendant. It does not show that the application is not made for vexation. R. S. 1889, sec. 2600; State v Howell, 117 Mo. 307. The application for a continuance can not be reviewed by this court because it is not incorporated in the bill of exceptions, and that is the only repository known to the law for such a motion. Besides, the record does not show that any exceptions were taken to the action of the court in overruling the motion. State v Palmer, 161 Mo. 156; State v. Callaway, 154 Mo. 95; State v. Hancock, 148 Mo. 493. (2) If the position be taken that the affidavits of Hooker and Krieder only go to the alleged fact that defendant was not in Carthage on the nineteenth day of March, 1902, and that a new trial ought to be granted because of this alleged newly-discovered evidence, then there are several answers to that contention. In the first place, the motion for a new trial does not cover the point. In the next place, the evidence is cumulative, as the defendant introduced evidence tending to show an alibi. The affidavit of defendant is lacking in several of the essentials required. State v. Miller, 144 Mo. 65; State v. Tomasitz, 144 Mo. 86; State v. Bohn, 161 Mo. 94. Again, it was not necessary for the State to show that the offense was committed on any particular day, provided that it was within the statute of limitations.
This is a prosecution by information, duly verified by the prosecuting attorney of Jasper county, charging the defendant with having burglarized a building belonging to W. S. Crane, and with having feloniously stolen therefrom certain gold fillings, the property of W. W. Flora therein kept and deposited, of the value of forty dollars or more. The defendant was duly arraigned, tried and convicted of grand larceny, but acquitted of the burglary charge. After his motions for new trial and in arrest of judgment were heard and overruled, he appealed to this court.
The facts are these: On the eighteenth or nineteenth day of March, 1902, Dr. W. W. Flora, a dentist in Carthage, Missouri, was preparing to go to his noon-day lunch. He was accompanied by a friend. As he was about to leave the office, the defendant came in and said he desired some work done. It seems that the dentist's time was engaged for that afternoon, and for some days thereafter, and it was accordingly arranged that the defendant should visit the office of the dentist some days thereafter. The parties then left the office of the dentist. He thinks that he locked the door of his private room and is positive that he did not lock the door of the reception room. It appears in evidence that prior to the visit of the defendant to the office of Dr. Flora, he had visited the office of Dr. Hardaway, and had also made an appointment with him. Dr. Hardaway had an attendant in the person of Miss Wrightsell, who observed the defendant at the time he visited the office. Afterwards, Dr. Hardaway desired some dental supplies and sent Miss Wrightsell to the office of Dr. Flora. She made the visit soon after twelve o'clock and before one. On entering the office of Dr. Flora, she discovered the defendant in the reception room. Dr. Flora had not yet returned. When he did return he began to attend some patient, and at about two or three o'clock in the afternoon discovered that a considerable amount of gold, more than forty dollars worth, at least, was missing. The evidence also showed that the defendant had visited the office of at least four other dentists in town, and had made, or attempted to make, engagements with them. He visited the office of Dr. Wilson and told him his name was Goldstein, and made an appointment with Dr. Wilson but did not return. He told the prosecuting witness that his name was Rogers. He visited the office of Dr. Reed, and had an opportunity to steal some gold fillings from him. It appears that Dr. Reed lost some gold fillings about that time.
On his part, defendant offered evidence tending to prove an alibi. He did not go upon the witness stand.
The court instructed the jury to acquit the defendant of burglary, but submitted the case to them on instructions for...
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