State v. Le Beau

Decision Date12 November 1957
Docket NumberNo. 46056,No. 1,46056,1
PartiesSTATE of Missouri, Respondent, v. Marvin LE BEAU, Appellant
CourtMissouri Supreme Court

Dwight H. Doss, Monticello, J. Ben Searcy, Eminence, for appellant.

John M. Dalton, Atty. Gen., Grover C. Huston, Asst. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of robbery in the first degree and his punishment assessed at imprisonment in the state penitentiary for a term of ten years. See Sections 560.120 and 560.135 RSMo 1949, V.A.M.S. He has appealed and filed a full transcript and a brief, but has made only one assignment of error, to wit, that the trial court abused its discretion in overruling his application for a continuance on the day the cause went to trial.

Before reviewing the facts, we may say that the application for a continuance was based upon the absence of two non-resident material witnesses on whom defendant relied to establish an alibi. As appellant, he insists that the application was sufficient in both form and substance and fully complied with the requirements of Supreme Court Rule 25.08, 42 V.A.M.S., which has superseded Sections 545.710 and 545.720 RSMo 1949, V.A.M.S. Appellant concedes that the court's action in overruling his application 'may find some basis in the fact that the record discloses previous applications for continuance and previous allowances, and even for the same reasons.' Appellant's theory, however, is that 'each motion and the grounds therefor must necessarily stand alone and be applied to the facts as they exist at the time of making such motions and applications.' Accordingly, appellant contends that the application for a continuance is question should have been considered and ruled on its own merits independent of the prior history of the case as shown by the records of the trial court at the time the application was presented and ruled.

The information was filed in the Circuit Court of Dent County on the 13th day of November 1952 and charged that the offense was committed on or about the ___ day of April 1952. In the trial of the cause the state's evidence tended to show the offense was committed on April 2, 1952; and that the defendant was arrested on the following morning. In view of the issues presented on this appeal it is unnecessary to review the state's evidence tending to show that defendant was guilty of the offense charged. It is sufficient to say that the evidence was substantial and fully supports the verdict of the jury.

The cause was first set for trial on November 18, 1952, but on November 13, 1952, the defendant made application for continuance on the ground of illness--a virus infection and pleurisy. The application was supported by defendant's affidavit and a certificate of V. E. Cannon, Jr., M. D. of Decatur, Illinois. The application was sustained and the cause continued.

Thereafter, the cause was set for trial on March 23, 1953, but, on the application of the defendant that he was ill and suffering from sore throat and a chest condition, the cause was continued. The application was supported by defendant's affidavit and the certificate of Dr. John J. Hopkins of Decatur, Illinois.

Thereafter, the cause was set for trial on June 16, 1953, but defendant did not appear and his bond was forfeited and an alias capias was issued for his arrest. The cause was thereafter continued from time to time, to and including May 16, 1955, the defendant not being in custody.

During the summer of 1955, defendant surrendered to the local officers and, on July 25, 1955, defendant filed his application for a change of venue from Dent and Shannon counties on the ground of prejudice of the inhabitants of said counties against him. He attached a newspaper article to his application, which article had appeared subsequent to his surrender. The article referred to him as one of 'Ten Most Wanted by the F B I.' The application for change of venue was sustained and the cause was transferred to the Circuit Court of Howell County, where, on August 19, 1955, the cause was set for trial on October 4, 1955, and defendant released on bond.

The cause was tried on October 4, 1955 and, the jury being unable to agree, a mistrial was ordered and the cause continued to January 16, 1956, on which date it was continued by agreement to the April term 1956.

On April 9, 1956, defendant's counsel Hon. George F. Addison withdrew as attorney for defendant.

Thereafter, on April 16, 1956, attorneys Green and Green, as counsel for defendant, filed an application for continuance on the ground that defendant was not advised of his former attorney's withdrawal until April 10, 1956, and on the further ground that the material witnesses Perrin and Beulah Palmer were absent from the state and it was impossible to secure their presence for trial at the April term. The cause was thereupon continued, the state consenting thereto. Thereafter, on September 24, 1956, Green and Green withdrew as counsel for defendant and the cause was set for trial on October 10, 1956, on which date defendant filed the present application for a continuance based in part upon the absence of the same witnesses referred to in his prior application for a continuance, and in part upon the ground of withdrawal of his attorneys, Green and Green.

Upon the hearing of this application for a continuance, Hon. H. D. Green testified that he had been employed and paid in April 1956 for the sole purpose of attempting to obtain a continuance from April 16, 1956; and that, when the continuance was granted, his duties were at an end, since he had been employed for no other purpose. It also appeared that the cause had been continued at the June term 1956, but without a record entry.

The application for a continuance, dated October 10, 1956, was supported by the affidavit of defendant. The application covers some ten pages of the transcript, and on its face it is sufficient to meet all of the formal requirements of Supreme Court Rule 25.08. The application alleged that defendant did not receive notice of the present setting of the case until September 1, 1956; or of the withdrawal of Green and Green until September 7, 1956; that he had thereupon employed Hon. J. Ben Searcy of Eminence, Missouri, to be associated with Hon. Dwight H. Doss of Monticello, Illinois; that in October 1955, the address of Perrin Palmer and wife, the material witnesses hereinbefore referred to, was Cabool, Missouri, but that they had moved to Tulsa, Oklahoma; that an effort had been made to reach them in Tulsa, but they could not be located; that Perrin Palmer was a missionary or itinerant minister and efforts to locate the witness or his wife in Tulsa, Oklahoma, Bentonville, Arkansas, Springdale, Arkansas, and other places had failed; and that, if the cause be continued a reasonable time, the Palmers would be located and would voluntarily appear. The application set out that defendant's defense was 'primarily the defense of alibi and mistaken identity'; that Falmer and wife were his former neighbors and could support his alibi defense. To show the materiality of the testimony of the missing witnesses, the defendant attached to his application a copy of the deposition testimony of the prosecuting witness and also a transcript of the testimony of Palmer and wife, as given in the prior trial of defendant on October 4, 1955. The transcript of the testimony of these witnesses, as given in the prior trial, covers some 25 pages of the record. Their testimony was reviewed at length in the application and its materiality is not here questioned. The recent efforts of the defendants to locate the Palmers in Oklahoma and Arkansas were reviewed at length and it was alleged that defendant had traveled in excess of 2300 miles in trying to locate the witnesses.

Defendant offered no evidence in support of his verified application, however, in the hearing on the application it appeared that defendant had at all times been represented by Mr. Doss, an attorney of record in the case, who had expected a Missouri attorney to actually try the case. The application alleged that, when defendant went to Tulsa to the last known address of the witnesses, the windows were all covered with paper and he couldn't definitely ascertain whether the witnesses lived there or not, as no one was at home; and that defendant had exhausted all possible leads, but had not been able to catch up with or locate the witnesses, Reverend Perrin Palmer being an itinerant minister or missionary, as stated.

The trial court in considering the application reviewed the history of the case as shown by the record and pointed out that the transcript of the testimony of the Palmers at the prior trial of the cause could be used and introduced in evidence, if the motion for continuance was overruled. See Sections 492.410 and 492.400 RSMo 1949, V.A.M.S.; State v. Coleman, 199 Mo. 112, 119, 97 S.W. 574. The court also pointed out that the witnesses resided out of the state; that they could not be required to return; and that while depositions could be taken, 'you have taken them in open court where both sides had a right to examine them.' The application was then overruled.

The trial to a jury was, thereafter, had on October 10, 1956 and a verdict of guilty returned on the same date. Although defendant was represented by two attorneys, the state's witnesses were not cross-examined and defendant did not testify or offer any testimony in his behalf. The transcript of the testimony of Palmer and wife was not offered in evidence.

As stated, the formal sufficiency of the application for a continuance is not questioned, but formal sufficiency is not enough. State v. Dettmer, 124 Mo. 426, 432, 27 S.W. 1117. In determining the issue presented on this appeal, two questions present themselves: (1) Did the court err in considering the prior history of the case as shown by the record before him, as well as the formal application for...

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31 cases
  • State v. White
    • United States
    • Court of Appeal of Missouri (US)
    • 18 Abril 1958
    ...or refusal of an application for continuance rests largely within the sound judicial discretion of the trial judge. State v. Le Beau, Mo., 306 S.W.2d 482, 486(5); State v. Bockman, Mo., 251 S.W.2d 607, 608(3). There was no abuse of that discretion Defendant's next point is that the court er......
  • State v. Johnstone, 47366
    • United States
    • United States State Supreme Court of Missouri
    • 14 Marzo 1960
    ...The record discloses no abuse of the discretion resting in trial courts in ruling a defendant's requests for a continuance. State v. Le Beau, Mo., 306 S.W.2d 482, 486; State v. Bockman, Mo., 251 S.W.2d 607, 608. The circumstances with respect to the newspaper article fall within the observa......
  • State v. Bibee
    • United States
    • Court of Appeal of Missouri (US)
    • 21 Mayo 1973
    ...discretion in overruling the application and did not act arbitrarily, capriciously and oppressively, or abuse its discretion. State v. Le Beau, 306 S.W.2d 482, 486(1--4) (Mo.1957). Assignment Number I is Assignment Number II: 'The Court erred in refusing the request of defendant's attorney ......
  • State v. Lane
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Mayo 1977
    ...court; and . . . an appellate court will not interfere, unless it clearly appears that such discretion has been abused." State v. Le Beau, 306 S.W.2d 482, 486 (Mo.1957). A defendant must demonstrate that the denial of a continuance prejudiced his case. State v. Tash, 528 S.W.2d 775 (Mo.App.......
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