State v. Clark

Decision Date12 May 1924
Docket NumberNo. 3522.,3522.
Citation214 Mo. App. 536,262 S.W. 413
PartiesSTATE v. CLARK.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

G. H. Clark was convicted of violation of the prohibition statute, and appeals. Reversed and remanded.

Cunningham & McClellan, of Eminence, for appellant.

L. N. Searcy, Pros. Atty., of Eminence, for the State.

BRADLEY, J.

Defendant was convicted of possessing intoxicating liquor contrary to our prohibition statute, and was fined $200. After the usual motions, he appeals.

This cause was not argued, but counsel were present when it was submitted and stated that the principal question is the action of the trial court in overruling defendant's application for a continuance. Defendant stated in his affidavit that Eon. S. A. Cunningham was his attorney, and that Mr. Cunningham was State Senator and was then in attendance upon the Legislature which was then in session. Defendant further stated in the affidavit that the attendance of Mr. Cunningham at his trial was necessary in order that he might have a fair and proper trial. The prosecuting attorney filed a counter affidavit to the effect that Mr. Cunningham's law partner, John W. McClellan, Esq., was fully capable of looking after defendant's cause. Mr. McClellan filed an affidavit to the effect that he, because of the sickness and death of his mother, and the sickness of his father, had been compelled to be out of his office the previous two months. These affidavits were filed March 14, 1923. Defendant was arrested on March 2, 1923, and was on trial the 14th thereafter. According to Mr. McClellan's affidavit, he had had time to give the defendant's case but little, if any, attention. The court overruled the application on the ground that Mr. McClellan was a lawyer of experience; that the charge was a misdemeanor, and because the court saw nothing to prejudice the defendant.

The statute upon which the affidavit for a continuance is based is section 1388, R. S. 1919. This statute provides that when an affidavit for a continuance is filed in compliance therewith, the court shall continue such suit and all other proceedings therein. This statute was enacted in 1895, Laws 1895, p. 93, and when passed it provided that when an affidavit was filed, etc., the court mail continue. The statute was amended in 1913, Laws 1913, p. 158, and the word may referring to continuance was changed to shall. That was the only change made in 1913. The section was repealed in 1915, Laws 1915, p. 226, and a new section enacted, which broadened the scope, but still retained the shall.

We have not been able to find where this section has been construed, but the character of the amendment of 1913...

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11 cases
  • Kinsella v. Kinsella
    • United States
    • Missouri Supreme Court
    • November 6, 1944
    ...in the Legislature as grounds therefor, and erred in refusing Mr. Tucker time to prepare. Sec. 1089, R.S. 1939; State v. Clark, 214 Mo.App. 536, 262 S.W. 413. And erred in refusing Mr. Tucker time to prepare an amended affidavit if the first was defective. The statute is mandatory. The cour......
  • In re North American Refractories Co.
    • United States
    • Texas Court of Appeals
    • August 30, 2001
    ...much of their law practice in exchange for the meager compensation paid for service as a member of the legislature. State v. Clark, 214 Mo.App. 536, 262 S.W. 413; Bell v. State, 55 Okl.Cr. 439, 75 P.2d The constitutionality of the legislative continuance statute, vis a vis, a separation of ......
  • State v. Myers
    • United States
    • Missouri Supreme Court
    • February 7, 1944
    ... ... affidavit for continuance, based upon the fact that Charles ... Farrar was employed as counsel and was member of the General ... Assembly, attending the session of the General Assembly at ... the time, since the affidavit does not follow the statute and ... is not sufficient. State v. Clark, 214 Mo.App. 536, ... 262 S.W. 413; Secs. 1089, 4019, R.S. Mo. 1939; State v ... Hancock (Mo. Sup.), 7 S.W.2d 275; State v. London ... (Mo. Sup.), 84 S.W.2d 915; State v. Londe, 345 ... Mo. 185, 132 S.W.2d 501. (2) There was sufficient substantial ... evidence for the jury to believe the ... ...
  • State ex rel. Snip v. Thatch
    • United States
    • Missouri Supreme Court
    • June 10, 1946
    ...Sec. 96, Civil Code of Missouri, Laws 1943, p. 383; Sec. 1089, R.S. 1939; State v. Myers, 352 Mo. 735, 179 S.W.2d 72; State v. Clark, 214 Mo.App. 536, 262 S.W. 413. If the respondent had no authority to overrule petitioner's application for continuance, then prohibition is a proper remedy. ......
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