State v. Dawson

• Decision Date: 15 November 1886
• Parties: STATE v. DAWSON and others.
• Court: Missouri Supreme Court

1 S.W. 827

90 Mo. 149

STATE v. DAWSON and others.

Supreme Court of Missouri.

November 15, 1886.

1. CRIMINAL LAW — INDICTMENT — VENUE — CAPTION — REV. ST. Mo. § 1813.

Under section 1813, Rev. St. Mo., the venue in an indictment is sufficiently alleged when it is stated in the caption of the indictment.

2. CONTINUANCE AND ADJOURNMENT — ABSENCE OF WITNESS — SUBPŒNA NOT RETURNED — FACTS TO BE TESTIFIED TO — ADMISSION BY PROSECUTING ATTORNEY.

Application was made by defendants, charged with burglary and larceny, for a continuance on the ground of absence of a material witness, and it appeared from their affidavit that a subpœna had been issued as soon as witness' whereabouts was ascertained, and that facts which they expected to prove by him, if true, would

tend to establish their innocence. Held, that it was error to compel defendants to go to trial before the return of the subpœna, there being nothing to indicate that it could not be served, and notwithstanding it was admitted by the prosecuting attorney that the witness would testify to the facts alleged in the defendants' affidavit.

3. WITNESS — ATTORNEY — PRIVILEGED COMMUNICATION — CLIENT INDICTED FOR STEALING SILVER COINS — MONEY PAID AS RETAINER.

Upon the trial of defendants charged with stealing, among other things, $160 "of current silver coins of the United States," defendants' attorney was permitted to testify as to the kind of money defendants paid him as a retainer, to-wit, $45 in silver and $5 in gold. Held error, the transaction being a privileged communication.

4. BURGLARY — EVIDENCE — COINS EXCHANGED AFTER BURGLARY.

Upon the trial of defendants charged with burglary and larceny, testimony to the effect that the morning after the burglary they exchanged 35 copper cents for other money is irrelevant, when there is no charge in the indictment that they had stolen copper coins.

Appeal from Jasper circuit court.

The Attorney General, for the State. B. T. Green, Cloud & French, and Al. Moore, for appellants, Dawson and others.

HENRY, C. J.

Defendants were indicted for burglary and larceny in the Jasper circuit court at its December term, 1885. The charge in the indictment is that on, etc., at the county of Jasper, (omitting to aver in what state,) the offense was committed. The caption is: "State of Missouri, County of Jasper — ss."

On a trial defendants were found guilty, and sentenced to imprisonment in the penitentiary for a term of four years each, from which they have prosecuted their appeal.

The venue was sufficiently alleged. Section 1813, Rev. St., provides that "it shall not be necessary to state any venue in the body of the indictment or information; but the county or other jurisdiction named in the margin thereof shall be taken to be the venue of all the facts stated in the body of the same."

The grand jury found the indictment on the eleventh day of December, 1885. On the same day the defendants were arraigned, and pleaded not guilty. The seventeenth day of December was set for the trial of the cause. On the fourteenth of December defendants had a subpœna issued, and directed to the sheriff of Jackson county for J. S. Barnhill, a witness for defendants, in their affidavit stating that they had it issued as soon as they ascertained where the said witness was to be found, and also stating the facts they expected to prove by him, which, if true, tended to establish their innocence of the charge. The prosecuting attorney admitted that, if present, Barnhill would testify to the facts alleged in the affidavit, and thereupon the court overruled the application for a continuance, and compelled defendants to go to trial.

The precise question which arises upon the above facts was not passed upon in either of the cases cited and relied upon by the attorney general. In the Jennings Case the witnesses had been subpœnaed, but on account of sickness were unable to attend. No attachment was asked, and, if it had been, "would have been ineffectual to secure their attendance." Upon the admission made by the state that the absent witnesses would testify as alleged in the affidavit, the continuance was refused. State v. Jennings, 81 Mo. 190. So, in the case of State v. Henson, 31 Mo. 385, the...