State v. Burns

• Decision Date: 31 October 1873
• Citation: 54 Mo. 274
• Parties: STATE OF MISSOURI, Respondent, v. CHRISTOPHER BURNS, Appellant.
• Court: Missouri Supreme Court

54 Mo. 274

STATE OF MISSOURI, Respondent,

v.CHRISTOPHER BURNS, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Louis Criminal Court.

C. P. Johnson, for Appellant.

I. The court erred in overruling the motion for a continuance. The record shows clearly that the defendant has been affected injuriously by being deprived of the evidence which he would have obtained by further continuing the cause. (State vs. Klinger, 43 Mo., 127; McKay vs. State, 12 Mo., 492; McLane vs. Harris, 1 Mo., 700; Riggs vs. Fenton, 3 Mo., 28; Moore vs. McCulloch, 6 Mo., 444; Tunstall vs. Hamilton, 8 Mo., 500; Darne vs. Broadwater, 9 Mo., 19; State vs. Schoenwald, 31 Mo., 147.)

II. The challenge and objections, made by defendant to the entire panel of jurors summoned to try said cause under the special venire ordered by the court, should have been sustained. (Sess. Acts 1855, p. 96, § 17.) The general statute law relative to the qualifications and summoning of jurors does not apply to a criminal cause. (Wagn. Stat., 800, § 23.) The general law, governing courts having criminal jurisdiction in summoning jurors, is set forth in Wagn. Stat., 801, §§ 29, 30, 31, 32; 1102, §§ 7, 8. The provisions of the law relative to St. Louis county are such that the jury commissioner can easily supply such venire as contemplated. (Laws St. Louis Co., p. 217, § 3.)

III. The defendant was entitled to a hearing on his application for a change of venue made to the Circuit Court, and a decision thereon, before being put to his trial. (Laws of St. Louis Co., p. 1, § 2.)

J. C. Normile, for Respondent.

I. This court will not ordinarily interfere with the discretion of the lower court in ruling on motions for continuance. (Green vs. State, 13 Mo., 382; State vs. Klinger, 43 Mo., 127; Frederick vs. Rice, 46 Mo., 24.)

II. The Jury Act of St. Louis county (Laws of 1872, p. 214), makes no provision for summoning special juries, hence when a special venire is demanded, the jury must be summoned under the provisions of the general statute.

III. The petition for a change of venue does not disclose when the prejudice of the judge became known to defendant. There was no reasonable notice to the Circuit Court attorney of the intended application. (State vs. Reed, 11 Mo., 379, Perry vs. Roberts, 17 Mo., 36.)

IV. It does not appear from the record that the Circuit Court ever acted on the application; nor is there anything to show why the Criminal Court should stop its proceedings.

WAGNER, Judge, delivered the opinion of the court.

The defendant, in conjunction with one Barrett, was indicted in the Criminal Court for committing a rape upon the person of one Marie Meurer, a female about fourteen years of age.

At the trial he was found guilty, and sentenced to a term of ten years in the penitentiary. No objections are made to the instructions as given by the court, nor to any other rulings, except as hereinafter mentioned.

The first point raised is, that the court erred in refusing a continuance. The indictment was presented to the court by the grand jury on the 22d day of November, 1872, and on the 27th of the same month the defendant was arraigned, and pleaded not guilty. On the 9th day of December thereafter, the case being docketed and set for trial, the defendant obtained a continuance of the cause to the January term, 1873, on account of the absence of Miller, McCarthy and Grady, who were alleged to be witnesses material for the defense. At the January term, 1873, the defendant obtained a second continuance upon his affidavit, because Miller was absent. This continuance was to the March term of the court. On the 11th day of April, it being of the March term, defendant filed his motion, accompanied by an affidavit, asking for a further continuance.

The grounds set forth in this affidavit were that Miller, Grady, Campbell and Chapman, material witnesses, were absent. This motion was by the court overruled. The case was set for trial on the 12th day of March, and on that day the cause was regularly called up for trial, and at the defendant's request it was laid over till the 8th day of April. The case was then called on the 11th day of April, when the motion and affidavit for a continuance was made. In the affidavit the defendant states, that on the 10th day of March he caused subpœnas to be issued for the witnesses, Miller and Grady, and on the same day placed them in the hands of the officers; that the officers failed to find the witnesses, and returned the subpœnas accordingly; that when the cause was laid over till April, on the 8th day of that month he caused subpœnas to be again issued for the same witnesses, and that the officer made a similar return. It is then alleged in the affidavit, that both of the witnesses are residents of the city of St. Louis; that Grady resides with his parents, and was in the city till within a few days previous to the time of making the affidavit, and that his absence was but temporary. It is further stated, that after the 8th day of April the affiant was informed, that Miller had gone to Belleville, Ills., and was engaged at work there in a nail mill, and that he had been so engaged for several months without defendant's knowledge or consent.

In reference to Campbell and Chapman it is stated, that the subpœnas were not issued for them till the 8th day of April, when the trial was set for the 11th of that month, but it is alleged, as an excuse for not trying to obtain their attendance earlier, that what they knew about the case was not communicated to the defendant any sooner.

It will be observed, that the first continuance was granted to the defendant simply on his motion, the second was upon affidavit, but does not appear to have been resisted, and a third continuance was then asked for. It was surely necessary, that by the third term the defendant should have used proper diligence to have prepared for trial. Now the cause was set for trial on the 12th day of March, and yet no subpœnas were issued for the witnesses till the 10th day of that month, giving the officer not more than two and, perhaps, but one day in which to hunt up the witnesses. This was absolutely no diligence. Why were not subpœnas issued immediately after the last continuance was granted, in order that the officers might have sufficient time to hunt up and procure the witnesses? The affidavit admits, that Grady was in the city till within a few days of the issuing of the subpœna; had ordinary diligence then been used, it is evident that he might have been served. As to Miller it is stated, that he had been for several months in Belleville, which is only sixteen miles from St. Louis. Had any inquiry been made, it is manifest that the place where he was at work could have been discovered, and his attendance procured, or his deposition taken. The same remarks will apply in reference to the subpœnas issued on the 8th day of April. As to the witnesses, Campbell and Chapman, they never seem to have been known or heard of till three days before the day set for trial. It is not shown, that their materiality could not have been ascertained at a sooner period. The affidavit as to them came with marks of suspicion. In all the prior proceedings they were never thought of, and a party might postpone a trial indefinitely if the precedent were...