State v. Dawson
| Decision Date | 15 November 1886 |
| Citation | 1 S.W. 827,90 Mo. 149 |
| Parties | The State v. Dawson et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. M. G. McGregor, Judge.
Reversed.
Cloud & French and W. T. Green for appellants.
The court erred in not quashing the indictment. If it charged a breaking it did not charge the manner of it, nor how the entry was effected. Kelley's Crim. Law, sec. 562, and authorities cited. The indictment should have been quashed for the reason that the names of no witnesses were indorsed on it. State v. Roy, 83 Mo. 268. The presumption in such case is that the indictment was found without evidence and should be quashed. State v. Grady, 84 Mo. 220. There was error in requiring defendants' attorney to testify as to facts which came to his knowledge by reason of his employment. They were privileged. Whar. Crim. Evidence [8 Ed.] sec. 496; R. S., sec. 4017; Cross v Riggins, 50 Mo. 335; Johnson v. Sullivan, 23 Mo. 474; Hull v. Lyon, 27 Mo. 570; 1 Greenl. Ev. [13 Ed.] secs. 237, 238, and notes, p. 276. The prosecuting attorney should not have been allowed to refer to the failure of defendants to testify in their own behalf. R. S., sec 1919; State v. Mahly, 68 Mo. 316; State v. Martin, 74 Mo. 547.
Alfred Moore and F. E. Luckett also for appellants.
(1) The indictment is defective in two fatal particulars, viz.: It fails to charge any venue and there are no witnesses indorsed upon it. The want of the indorsement of witnesses upon the indictment is good grounds of motion to quash. State v. Roy, 83 Mo. 268. The venue is an indispensable element in every criminal charge. It is a jurisdictional averment and should be laid in the charging part of the indictment. (2) The appellant's motion for a continuance should have been sustained. State v. Hickman, 75 Mo. 419; Wassels v. State, 16 Ind. 34, 35, and cases cited; Murphy v. Murphy, 31 Mo. 322; State v. Lett, 85 Mo. 54, 55. (3) The court erred in admitting the testimony of O'Sherrill as to receiving from defendants thirty-five copper cents in change. It was irrelevant and the error was not cured by an instruction to the jury to disregard it. State v. Fredericks, 85 Mo. 145; State v. Hopper, 71 Mo. 425; State v. Wolff, 15 Mo. 172; State v. Daubert, 42 Mo. 242. (4) The court erred in admitting in evidence, over the objection of the accused, the testimony of one of their counsel, Mr. French, as to how much money they paid him when they were first arrested, and his testimony thereof, viz: forty-five dollars in silver and five dollars in gold. The transaction was privileged. Speeches, etc., of David Dudley Field, vol. 2, p. 349; State v. Douglass, 20 W.Va. 780, and cases cited; Greenough v. Gaskill, 1 Mylne & Keene, 101; Com. v. Moyer, 25 Alb. L. J. 92; Cross et al. v. Riggins, 50 Mo. 335.
B. G. Boone, Attorney General, for the state.
The venue was sufficiently set out. Under our statute it is not necessary to state any venue in the body of the indictment. The county named in the margin being taken to be the venue for all facts stated in the body of the indictment. R. S., secs. 1813, 1821; State v. Keel, 54 Mo. 182. The breaking is explicitly and formally charged to have been done by the means and under the circumstances named in the statute. This is all that is required. State v. Henley, 30 Mo. 509. The court did not err in refusing to grant defendants a continuance on account of the absence of a witness. A subpoena had been issued for the witness and returned not found, and the prosecuting attorney admitted that such witness would testify, if present, as stated in the application. This clearly authorized the court in overruling the application and proceeding with the trial. R. S., sec. 1886; State v. Jennings, 81 Mo. 185; State v. Henson, 81 Mo. 384. The evidence of O'Sherrill was not objectionable. Wills on Cir. Ev., top pp. 73, 74; Cole v. People, 37 Mich. 544. The court did not err in requiring one of the attorneys for the defence to testify as to the kind of money paid him as a retainer by defendants. The payment of a retainer is not a professional communication. It is a collateral matter not of a private nature, and the witness was properly required to testify in regard to it. Snow v. Gould, 74 Me. 540; Harnman v. Jones, 58 N.Y. 378; Alden v. Goddard, 73 Me. 345; Com. v. Goddard, 14 Gray, 402. Defendants' objection that the names of the witnesses for the state were not indorsed on the indictment comes too late when made for the first time in the motion for a new trial. This court has held that it is ground for quashing an indictment if the names are not indorsed, but to be entertained it must be set forth in the motion. This was not done. State v. Roy, 83 Mo. 268; State v. Griffin, 87 Mo. 608.
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 offence was committed).
The caption is:
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. Sec. 1813 R. S. 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 day of December defendants had a subpoena 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 subpoenaed, 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. 185.
So in the case of State v. Henson, 81 Mo. 384, the subpoenas were returned not served. In State v. Hickman, 75 Mo. 416, the question under consideration was decided adversely to the state. There the court said, Hough, J., delivering the opinion: "Process for the defendant's witnesses having been seasonably issued, we think the circuit court erred in compelling him to go to trial before the same was returned, there being nothing in the application for a continuance, or in the record before us, indicating that the subpoenas had not been issued in good faith, or that the same could not be served." The argument made by the learned judge to sustain that view is unanswerable and I could not add to its force.
The court also erred in permitting Mr. French, defendants' attorney, to testify as to the kind of money defendants paid him as a retainer, viz: forty-five dollars in silver and five dollars in gold. They were charged with stealing among other things, one hundred and sixty dollars "of current silver coin of the United States." Our statute, which provides that an attorney shall not be competent to testify "concerning any communication made to him by his client in that relation or his advice thereon without the consent of such client," is but...
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