State v. Blitz

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1027,171 Mo. 530
• Parties: STATE v. BLITZ.
• Court: Missouri Supreme Court

71 S.W. 1027

171 Mo. 530

STATE v. BLITZ.

Supreme Court of Missouri, Division No. 2.

February 3, 1903.

CRIMINAL LAW—LARCENY—TRIAL—CONTINUANCE—ABSENCE OF WITNESSES—FORM AND REQUISITES OF APPLICATION—CHANGE OF VENUE—NOTICE — EVIDENCE — STATEMENTS TO POLICE OFFICERS—FLIGHT—WITNESSES—CREDIBILITY — CONTRADICTION — IMPEACHMENT—CONVICTION OF MISDEMEANORS—APPEAL—REVIEW OF EVIDENCE—OBJECTIONS.

1. A conviction based on conflicting evidence will not be reversed on the ground that it is not supported by a preponderance of the evidence.

2. Where an application for continuance for absence of witnesses did not state that the applicant believed that the facts he expected to prove by such absent witnesses were true, as required by Rev. St. 1899, § 2600, the application was properly denied.

3. The fact that the trial court, in denying a continuance, based its ruling on the ground of want of diligence, did not preclude an affirmance of the ruling on another ground.

4. Where an application for a continuance was presented to the regular judge and overruled, and, such judge being disqualified, another judge was called in to try the cause a week thereafter, defendant's failure to renew his application before the latter judge constituted a waiver of any error committed by the regular judge in overruling the motion.

5. A criminal case was called before the regular judge, and a motion for continuance denied on October 25th. The regular judge being disqualified, the judge of another circuit was called in to try the cause, and after a week's delay the case was called on November 1st; and, after an unsuccessful effort to continue, one of the defendant's attorneys withdrew, and another filed an application for a change of venue, in which defendant deposed that knowledge of the existence of the facts on which the application was based came to him since the last preceding continuance, which might have been at any time between October 26th and November 1st. Notice of the application was not given to the district attorney until 5 o'clock on the day before the cause was called for trial. Held, that the application was properly denied on the ground that reasonable previous notice thereof, as required by Rev. St. 1899, § 2576, had not been given.

6. Rev. St. 1899, § 4680, provides that any person who has been convicted of a criminal offense is a competent witness, but that such conviction may be proved, to affect his credibility, by the record or by his cross-examination. Held, that the term "criminal offense," as used in the statute, included both felonies and misdemeanors, and evidence tending to show that witnesses had been convicted of misdemeanors was competent as affecting their credibility.

7. Evidence as to what defendant said at the time he surrendered himself to the officer is incompetent in his behalf.

8. In a criminal prosecution, the prosecuting attorney was entitled to ask a witness for defendant as to conversations had by the witness in the prosecuting attorney's office, for the purpose of laying a foundation for the contradiction of the witness.

9. The admission of evidence not objected to at the time cannot be reviewed on appeal.

10. Evidence that defendant failed to appear, and forfeited his recognizance, was admissible, as tending to show flight.

Appeal from criminal court, Jackson county; Samuel Davis, Special Judge.

Morris Blitz was convicted of grand larceny, and he appeals. Affirmed.

W. Rea Heath and Jas. W. Garner, for appellant. The Attorney General and Sam B. Jeffries, for the State.

FOX, J.

At the September term, 1901, in the criminal court of Jackson county, Mo., H. S. Hadley, prosecuting attorney, filed an information charging defendant, in connection with Ladd and Mullet, with grand larceny. As there is no assault made upon the information, there is no necessity for incumbering this opinion with a copy of it. The case was called for trial on the 25th day of October, 1901. The defendant then filed his motion and affidavit for a continuance, which was by the court overruled. The cause was continued to November 1, 1901. At that time the cause was called for trial before Hon. Samuel Davis, the regular judge having been disqualified. Defendant presented his application for a change of venue, which was overruled on the ground of the insufficiency of notice of the presentation of such application. Defendant was put upon his trial, which resulted in his conviction, and his punishment fixed at five years in the penitentiary. From the judgment of conviction, this appeal is prosecuted to this court.

The larceny is alleged to have been committed on the 26th day of August, 1901, by stealing $320 from one William Hall, who was a resident of Osceola, St. Clair county, Mo.; the offense being committed on the board of trade at Kansas City. It appears that on the day in question the prosecuting witness, Hall, went to the stock yards in Kansas City, Kan., and collected from two commission houses the amount of money which was afterwards taken from him. He had been with the defendant the night before; having met him on Ninth street, between the Junction and the Savoy Hotel. Prior to this, he had never seen him. After Hall had been to the stock yards and collected the money, he went to the board of trade where he met the several defendants. They went into the pit with him, and while they were seated together, talking about the sale and purchase of grain, it was here, the testimony tends to show, that defendant took the money of Hall from his pocket, where he had placed it; he having rolled it up, inclosing it in a small rubber band. Hall did not miss the money until defendant had gotten up and left the room. When he arose he found his money gone, and made a public announcement of the fact. Defendant was pursued, and arrested on the following day. He denied committing the offense, and undertook to prove, and offered evidence tending to show, that Hall had turned the money over to some other parties, to be invested in betting on horse races.

The errors of the trial court, as assigned by appellant, are as follows: "Assignment of Errors. (1) The verdict and judgment of the court is contrary to the evidence and the weight of the evidence. (2) The court erred in refusing to grant a continuance to the defendant. (3) The court erred in refusing to hear the application of defendant for change of venue. (4) The court erred in refusing to grant the defendant a change of venue. (5) The court erred in the admission of the following incompetent and irrelevant testimony: As to whether Sis Miles, a witness for defendant, kept a house of prostitution. (6) The court erred in permitting the witness Susie Clark, a witness for defendant, to be examined as to whether she had been ever convicted in the state of Missouri,—as to whether she had been convicted of fighting. (7) The court erred in refusing to admit as evidence what Blitz, the defendant, said at the time he surrendered to the officer. (8) The court erred in permitting the prosecuting attorney to ask the witness Mullet in regard to his conviction for frequenting a bawdyhouse, and in regard to being in adultery with a woman, and as to conversations had with the prosecuting attorney and police officers. (9) Because the court erred in permitting the witness John Dwyer to testify to certain conversations had between McAnany, the witness, and prosecuting attorney, and Mullet, defendant's witness. (10) Because the court erred in permitting the witness Maxwell, a deputy marshal, to testify as to the number of deputies, and as to having five deputies search for the defendant. (11) The court also erred in permitting the record of the forfeiture of defendant's recognizance to be read at the time, and before the jury." All the testimony admitted or excluded, as herein stated, was admitted or excluded against the objections of defendant, to which defendant at the time excepted.

As to the first assignment of error, that the verdict "was contrary to the evidence and the weight of evidence," will say that, while the evidence is conflicting, there was ample evidence upon which to base the verdict; and this court, as it has repeatedly said, will not usurp the province of the jury, and undertake to say upon which side the evidence preponderated.

The second assignment of error is "that the court erred in refusing to grant a continuance to defendant." Applications for a continuance must strictly comply with the statute. Regarding such applications, the rigid rule prevails that they are to receive no favorable intendments. "Such an application must be drawn more carefully than a pleading." State v. Good, 132 Mo. 114, 33 S. W. 790. One of the essential requisites of an application for continuance, as provided in section 2600, Rev. St. 1899, is that the applicant must state that the facts he expects to prove by the absent witnesses he believes to be true. This necessary statement was not contained in the application for continuance in this cause; hence it was insufficient to warrant the court in granting the continuance. The application in the case of State v. Alred, 115 Mo. 471, 22 S. W. 363, was very similar to the one presented in this cause. At least one of the grounds for refusing the application was identical with the one here in question. Burgess, J., in that case, says, "Nor do we think that the court committed error in overruling the application of defendant for a continuance. The affidavit does not state that the defendant would be able to procure the testimony of the absent witnesses by the next term of court, nor does it allege that the facts which he expected to prove by said absent witnesses he believed to be true." Following the well-settled rule as here announced, there is no merit in the contention of appellant in respect to the application for continuance. It is urged in oral argument that the court overruled the application on the sole ground that it failed to show sufficient...