State v. Cain

• Decision Date: 19 February 1913
• Citation: 153 S.W. 1039
• Parties: STATE v. CAIN.
• Court: Missouri Supreme Court

153 S.W. 1039

STATE v. CAIN.

Supreme Court of Missouri, Division No. 2.

February 19, 1913.

1. CRIMINAL LAW (§ 603) — CONTINUANCE — ABSENT WITNESS — DILIGENCE.

Application for continuance for absence of a witness, by merely stating defendant "has used due diligence" in trying to locate witness and have him present at the trial, does not show, as required by Rev. St. 1909, § 5204, "what diligence * * * has been used in the premises by defendant."

2. CRIMINAL LAW (§§ 586, 1151) — CONTINUANCE — DISCRETION.

Continuance is largely in the discretion of the trial court, its action in which regard is not to be disturbed, unless abuse of such discretion appears.

Appeal from Criminal Court, Greene County; Alfred Page, Judge.

Bill Cain appeals from a conviction. Affirmed.

The defendant was convicted of carrying a pistol concealed on his person, and sentenced to a year in jail and to pay a fine of $100.

Ed Drew was the proprietor of a pool hall, which was upstairs over the saloon of Joe Rose, in the city of Springfield. Drew had been convicted of keeping a gambling house. There was gambling of some kind going on on the night of the alleged offense. The prosecuting witness, Fred Bateman, and the defendant got into a quarrel over the ownership of a dime, which was lying on the billiard table, and which had been bet by the defendant in some way. Bitter words and threats passed between them. The proprietor ordered them both out of the hall, and they went downstairs. Bateman's evidence was to the effect that the defendant was in his shirt sleeves, and that soon after going downstairs, and while Bateman was near the stairs, the defendant passed on his way back up the steps, and the witness saw about two inches of the pistol in defendant's right-hand trousers pocket. Bateman then went and told Police Officer Stark that defendant had a pistol with the intention of shooting Bateman.

The evidence for both sides shows that when defendant went upstairs the proprietor sent him out of the pool hall and down the steps. He was then out on the street 15 or 20 minutes, going somewhere to see a show, and finding there was no show he returned to the saloon.

The evidence of the two policemen, McClinton and Stark, was to the effect that, as defendant was entering the front door of the saloon, they were from 8 to 15 feet behind him, and following him. When they got through the front door, they found the defendant inside, between the front door and the screen, knocking with the pistol on the door of a little side office. They arrested him and took the pistol from him. They testified that the pistol was not visible on the defendant while they were observing him on the street; and that the defendant did not have time after entering the front door of the saloon, to pass through the screen into the saloon, get the pistol, and return to the point where he was arrested.

The prosecuting witness, Bateman, was, at the time of the trial, under parole, under conviction for burglary.

The evidence for the defendant was to the effect that when he left the pool hall and went downstairs for the pistol he did so at the request of one Will Simms, who was negotiating for its purchase. The pistol was in the keeping of Joe Rose, in the saloon. On that subject the defendant testified as follows: "Will Simms was standing there, and I picked up my money. He was in St. Louis running as an extra Pullman porter, and I didn't know his name when it was tried here. He says: `Will, go down and get that gun if you are going to let me have it.' I went down and got the gun, and he was at the foot of the stairs. He says, `I can't give $15 for that gun.' I says, `I won't take a cent less,' and I turned around and went on upstairs. When I got to the turn of the steps, where the steps turn, I met Mr. Drew. He says: `Fred Bateman ain't up here. I put him downstairs.' He says, `What is that you got in your hand?' I says, `That smoke wagon of mine.' He says, `Give me that.' I says: `All right; take it down and give it to Joe Rose.'"

According to the testimony of Drew and the defendant, the pistol was handed to Drew by the defendant, to be taken downstairs and given to Rose. When the defendant came back from the street to the saloon, according to the evidence for the defendant, he passed through the screen door into the saloon, where there were a great many customers, found Drew there, who said to him, "Do you want me to hand him the gun, or do you want to hand it to him?" to which the defendant answered, "I says, `I will hand it to him.' There were too many people at the bar to hand it over the bar, and I walked around to the office door and knocked on it, and McClinton grabbed me and the gun too."

Drew and Rose both corroborated the defendant on the point of his getting the pistol from Drew, in the saloon, for the purpose of turning it over to Rose. The defendant testified that he first got the gun from Rose, and went upstairs in order to sell it to Simms. He asked Simms $15 for the pistol and Simms declined to buy.

Fred Waddell, a witness for the defendant, had been twice in the penitentiary.

The biography of the defendant, as given by himself, is as follows: "Q. How many times have you pleaded guilty and been convicted? A. I think I pleaded guilty once to jumping a train, and they got me hooked up once on a license. Q. How many times have you been convicted? A. Two or three times for having little fist fights. Q. What else have you been convicted for? A. A man swore false on me once that I stole a shovel, while I didn't. Q. What did they give you? A. A dollar and costs. Q. Never was convicted of a felony? A. What do you call a felony, carrying a gun? Q. Never been in the penitentiary? A. No siree,...