State v. Fox

• Court: Missouri Supreme Court
• Writing for the Court: NORTON
• Citation: State v. Fox, 79 Mo. 109 (Mo. 1883)
• Decision Date: 31 October 1883
• Parties: THE STATE v. Fox, Appellant.

79 Mo. 109

THE STATE

v.Fox, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Vernon Circuit Court.--HON. C. G. BURTON, Judge.

AFFIRMED.

E. E. Kimball and D. P. Stratton for appellant.

D. H. McIntyre, Attorney General, for the State.

NORTON, J.

The defendant was indicted on the 24th day of May, 1883, at the May term, 1883, of the circuit court of Vernon county, for murder in the first degree for killing Thomas Howard on the 19th day of May, 1883. Upon this indictment he was arraigned on the 26th day of May, and on the 27th day of May the court assigned counsel to defend him; on the 28th day of May the case was called for trial when defendant filed a motion, accompanied by affidavit, for a continuance of the cause till the next term of the court. Upon hearing this application the court continued the cause till the 6th day of June, 1883, when it was called for trial, and both parties announced themselves ready for trial, whereupon a jury was summoned and the cause submitted to them, and they returned a verdict of guilty in the first degree, as charged in the indictment. From the judgment of conviction defendant has appealed, and in the motion for new trial assigns in the motion the following as the reasons why it should be granted: 1st, The action of the court in refusing to grant a continuance till the next term. 2nd, That the jury were allowed to separate. 3rd, That they were improperly influenced in the verdict.

1. PRACTICE: continuance.

I. It is so well settled in this State as not to require the citation of authorities to establish it, that the granting of continuances is largely in the discretion of the trial court, and that this court will not interfere in such cases unless such discretion has been exercised arbitrarily and to the prejudice of the party applying for the continuance. Giving force and effect to the above principle in the present case, we are of the opinion that the court did not, in the disposition of defendant's application, rule either arbitrarily or to defendant's prejudice. The affidavit for continuance discloses the fact that when defendant was arraigned upon the indictment, he pleaded guilty; that the court refused to receive this plea and directed a plea of not guilty to be entered, and assigned counsel to defend him. The affidavit, after stating that the counsel had not had time to investigate the case, as the basis for continuance, set forth that defendant, at the time of the killing, was insane and not responsible for his acts; that this fact could be established by certain witnesses (naming them) residing in Audrain county, Missouri; and that, if the cause was continued to the next term of the court the attendance of said witnesses could be procured or their depositions taken. The record shows that the court continued the cause on this application till the 6th day of June; that defendant gave notice that he would take the deposition of the witnesses named in the application on the 4th day of June in Mexico, Audrain county; that the prosecuting attorney waived service of notice. It is further shown by the record that on the 4th day of June the attorney of defendant as well as the attorney prosecuting for the State, and also the witnesses named in the application, were in attendance in Mexico, and that defendant's counsel, after talking with the witnesses, declined to take their depositions, and so notified the prosecuting attorney. It further appears that when the cause was called for trial, on the 6th day of June, the time to which it had been continued, defendant announced himself ready for trial. It is apparent, we think, that the action of the court in continuing the cause from the 29th day of May to the 6th day of June was neither arbitrary nor prejudicial to defendant. The continuance was asked to the next...