State v. Clary
| Decision Date | 09 October 1961 |
| Docket Number | No. 1,No. 48589,48589,1 |
| Citation | 350 S.W.2d 809 |
| Parties | STATE of Missouri, Respondent, v. Raymond CLARY, Appellant |
| Court | Missouri Supreme Court |
Russell D. Roberts, Kirksville, for appellant.
Thomas F. Eagleton, Atty. Gen., J. Richard Roberts, Sp. Asst. Atty. Gen., for respondent.
COIL, Commissioner.
Raymond Clary was convicted of the charge brought under the provisions of Section 559.210 RSMo 1959 and V.A.M.S., of unlawfully striking and kicking William Barnes in a manner likely to produce death or great bodily harm and thereby inflicting upon the said Barnes great bodily harm. His punishment was fixed by a jury at three years in the state pentitentiary.
Defendant has appealed from the ensuing judgment and contends first that there was insufficient evidence to sustain the jury's verdict. The evidence from the state's standpoint tended to show that William Barnes operated a business in Edina, Missouri. On May 6, 1960, he saw defendant and wife walking by his place of business. Defendant struck the window with his fist and uttered some profanity directed toward Barnes. Barnes left his store and asked defendant, who by then had proceeded about twenty-five feet past the front of the Barnes building, what he had said. Defendant stopped and asked whether Barnes had a certain gun in his possession and, upon being assured that he did not, walked to Barnes and without anything further, either language or movement on Barnes' part, struck Barnes a couple of times and knocked him to the sidewalk and, while he lay there in an unconscious condition and 'bleeding real bad,' kicked him in the side of the face and hit him twice with his fist. An ambulance was called and Barnes was taken to a hospital where he remained for nime days. He was in shock and suffered multiple lacerations about his head and a brain concussion. He had headaches and experienced dizziness and blackouts. He was unable to walk without becoming dizzy for some time. There was medical testimony that it was possible for a concussion of the skull to cause death.
Section 559.210 requires only that there shall be an unlawful wounding or the infliction of State v. Janke, 238 Mo. 378, 141 S.W. 1136, 1138; State v. Browers, 356 Mo. 1195, 205 S.W.2d 721. There was evidence, heretofore set forth, from which the jury reasonably could have found that defendant inflicted great bodily harm upon Barnes under circumstances which would have constituted murder or manslaughter if death had ensued. State v. Webb, 266 Mo. 672, 182 S.W. 975.
Defendant contends that the information was insufficient. As we understand, the contention is that the information was defective because it did not contain an allegation to the effect that 'has death ensued in this case, the circumstances were such that defendant would have been guilty of murder or manslaughter if death had ensued.' The information was in approved form and the suggested allegations were unnecessary. State v. Janke, supra; State v. Porter, Mo., 81 S.W.2d 316, 318; State v. Watson, 356 Mo. 590, 202 S.W.2d 784, 786[2-4].
Defendant next contends that the trial court erred in overruling his motion for a continuance and abused its discretion in requiring defendant to go to trial without affording him and his counsel sufficient time to adequately prepare. The altercation giving rise to the information in this case occurred on May 6, 1960. Defendant was arrested on May 11 and at that time saw and read the complaint which had been filed against him which we have ascertained was substantially identical with the information which was thereafter filed on June 2. On September 7 defendant appeared, apparently for arraignment, and, upon being informed that the defendant did not have a lawyer but intended to employ one, the court postponed arraignment until defendant had retained a lawyer and informed defendant that his trial was set for October 24. On the morning of Monday, October 24, the trial date, defendant appeared with his counsel and filed a motion for continuance which alleged in substance that he had procured counsel on the preceding Saturday at 4 p. m. in Adair County; that theretofore he had diligently attempted to secure counsel residing in Knox County but for reasons set forth in the motion had been unable to do so; that he had sought to employ counsel residing in Lewis County but was unable to do so; that his present counsel had advised him that he could not properly represent him unless he had reasonable time in which to examine the charge, interview witnesses, and acquaint himself with the evidence and the applicable law; and defendant alleged further that if he were compelled to go to trial without benefit of counsel adequately prepared, his rights and freedom would be jeopardized. As ground 2 of his motion he alleged that no copy of the information had ever been served upon him and he had never seen or examined the charge in the case, and that his counsel had had no opportunity to obtain copies of the 'papers in the case.' The trial court overruled the motion after argument, and defendant entered a plea of not guilty, unavailingly renewed his request for continuance, and proceeded to trial.
In the brief it is contended that the trial court's action in overruling defendant's motion for continuance deprived him of 'rights guaranteed him by both the Constitution of Missouri and the Constitution of the United States, specifically the right to be informed of the nature and cause of the accusation, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.'
For the reasons hereinafter noted, we are of the opinion that the trial court did not abuse its discretion in overruling defendant's motion for a continuance. Defendant did not allege in his motion nor show in any manner that he had exercised diligence to obtain counsel reasonably soon after being advised of the trial date. Defendant had from September 7 to October 24, a period of forty-seven days. The reasonable inference from the record is, and there is no contention to the contrary, that defendant was free on bail during that entire period. The allegations in the motion that defendant was unable to hire counsel in Knox and Lewis Counties constituted no excuse whatever for defendant's failure to have retained counsel elsewhere or to have requested the court to appoint counsel for him. Defendant's counsel in oral argument stated that on some date prior to October 22 (counsel did not say how long prior), defendant had talked with him about the case and, upon being advised of the terms upon which counsel would accept employment, defendant left with the advice that as soon as he had sold his beans he would return. Under the circumstances, defendant has wholly failed either to allege or demonstrate any reason for having failed to obtain counsel in time for such counsel to have adequately prepared his defense.
The fact situation as disclosed by the motion and the argument in this case should be distinguished from that in those cases where a trial court has been held to have abused its discretion for refusal to afford a...
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State v. Brookshire
...connection with instruction No. 3 amply preserved the rights of the defendant. The precise question was ruled by this court in State v. Clary, Mo., 350 S.W.2d 809, l. c. 813(6). Instruction No. 3 referred the jury to instruction No. 4 where various terms were defined. Referring the jury to ......
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State v. Windle, 11835
...changing attorneys shortly before trial that created the complained of situation. State v. Ross, 375 S.W.2d 182 (Mo.1964); State v. Clary, 350 S.W.2d 809 (Mo.1961). See also Ramsey v. Grayland, 567 S.W.2d 682 (Mo.App.1978); Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964......
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State v. Ross
...his willing first appointed counsel and timely preparing for trial, said counsel having afforded him the opportunity to do so. State v. Clary, Mo., 350 S.W.2d 809. Nor does the defendant in any way demonstrate that the result of this trial would have been different had he been granted the r......
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State v. Lahmann
...the trial court of an abuse of discretion in refusing another continuance. State v. Ross, supra, 375 S.W.2d l.c. 185(6); State v. Clary, Mo., 350 S.W.2d 809, 811--812(3). Similarly, permitting withdrawal of counsel is within the sound discretion of the court, State v. Mimms, Mo., 347 S.W.2d......