State v. Harp

• Decision Date: 18 May 1928
• Docket Number: 28656
• Citation: 6 S.W.2d 562,320 Mo. 1
• Parties: The State v. Josh Harp, Appellant
• Court: Missouri Supreme Court

6 S.W.2d 562

320 Mo. 1

The State v. Josh Harp, Appellant

No. 28656

Supreme Court of Missouri

May 18, 1928

Appeal from Stoddard Circuit Court; Hon. E. P. Dorris Judge.

Affirmed.

T R. R. Ely, M. E. Dunneway and Wammack, Welborn & Cooper for appellant.

(1) Defendant was entitled to his discharge because of the fact that there had been four continuances of the case before the case was tried at the September term, 1926, of the court none of which were upon the application of the defendant, or at his instance or request. Sec. 4041, R. S. 1919; State v. Wear, 145 Mo. 185; State ex rel. Meininger v. Bruer, 304 Mo. 423; State ex rel. Stevens v. Wurdeman, 295 Mo. 581; State v. Farrar, 227 S.W. 1078; State v. Schyart, 199 S.W. 210. (2) The court committed error in permitting the prosecuting attorney while qualifying the jury to inquire of the jurors if they would give to the testimony of a witness taken at a former trial and read from the bill of exceptions the same weight they would give in case the witness were present in court and testifying in person. The State would have no right to offer such testimony, and even if the State had such right this would be getting such testimony before the jury and pointing it out with particularity and giving it undue prominence. The credibility of any witness and the weight to be given his testimony is entirely for the jury. State v. Houser, 26 Mo. 431; Ward v. Mo. Pac. Ry. Co., 311 Mo. 92; Lauck v. Reis, 310 Mo. 184; Champion Paper Co. v. Shilkee, 237 S.W. 109; Kansas City v. Boruff, 295 Mo. 28; Simpson v. Burnett, 299 Mo. 232; Bryant v. Rys. Co., 286 Mo. 342; Leister v. Wells, 300 Mo. 262. (3) The use by the State of the testimony of the witness Ben Mercer taken at the former trial, and preserved in the bill of exceptions, the witness being outside of the State, violated defendant's right under the Constitution of Missouri to meet the witnesses against him face to face. Constitution, Art. 2, sec. 22; State v. Houser, 26 Mo. 431; State v. Butler, 247 Mo. 696; United States v. Angell, 11 F. 43; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 247; Diaz v. United States, 223 U.S. 452, 56 L.Ed. 504; State v. Barns, 274 Mo. 629; State v. Moore, 156 Mo. 210; State v. Coleman, 118 Mo. 119; Sec. 5401, R. S. 1919.

North T. Gentry, Attorney-General, and Claud Curtis, Special Assistant Attorney-General, for respondent.

(1) It is only when the State is at fault that the defendant can claim a discharge for not having been brought to trial before the end of the third term of court after the filing of the indictment or information. State v. Mollineaux, 149 Mo. 646. The statute permitting the discharge of a defendant when he is not tried before the end of the third term of court after being committed to prison or giving bail was intended to operate only when there is some laches on the part of the State. State v. Huting, 21 Mo. 464; State v. Billings, 140 Mo. 193. A continuance by consent of the parties will toll the statute so that the defendant is not entitled to discharge. State v. Nelson, 279 S.W. 401. (2) The court committed no error by admitting the testimony of witness Ben Mercer taken at a former trial. (a) Testimony of a witness taken at a former trial is admissible where such witness is shown to be dead at time of trial. State v. McO'Blenis, 24 Mo. 402; State v. Moore, 156 Mo. 204; State v. Barnes, 274 Mo. 625; State v. Butler, 247 Mo. 685; Mattox v. United States, 156 U.S. 237; United States v. Greene, 146 F. 796. (b) Testimony of a witness taken at a former trial may be admitted where the witness is desperately ill or insane at the time of the trial. Spencer v. State, 112 N.W. 462; People v. Draste, 160 Mich. 66; Harris v. State, 160 S.W. 447; Valentine v. State, 194 P. 254. (c) The same rule applies where the witness is shown to be absent from the State at the time of the second trial. Perry v. State, 87 Ala. 30; Knight v. State, 103 Ala. 48; Burton v. State, 115 Ala. 1; Pate v. State, 158 Ala. 1; Francis v. State, 188 Ala. 39; South v. State, 86 Ala. 617; Pope v. State, 183 Ala. 61; Jacobi v. State, 133 Ala. 1; Matthews v. State, 96 Ala. 62; Vaughan v. State, 58 Ark. 353; Poe v. State, 95 Ark. 172; Eyer v. State, 112 Ark. 37; Rogers v. State, 136 Ark. 161; People v. Devine, 46 Cal. 45; Young v. People, 54 Colo. 293; Henwood v. People, 57 Colo. 544; Putnal v. State, 56 Fla. 86; Hunter v. State, 147 Ga. 823; Wilson v. State, 175 Ind. 458; Levi v. State, 182 Ind. 188; State v. Brown, 152 Iowa 427; State v. Nagel, 185 Iowa 1038; State v. Nelson, 68 Kan. 566; State v. Simmons, 78 Kan. 852; State v. Gentry, 86 Kan. 534; State v. Jordan, 34 La. Ann. 1219; State v. Maddison, 50 La. Ann. 679; Territory v. Ayer, 15 N. M. 581; People v. Bruno, 220 N.Y. 702; People v. Gilhooley, 108 A.D. 234; Warren v. State, 6 Okla. Crim. 1; Hawkins v. United States, 3 Okla. Crim. 651; Smallwood v. State, 14 Okla. Crim. 125; Kearns v. State, 14 Okla. Crim. 142; Beshirs v. State, 14 Okla. Crim. 578; Liddell v. State, 18 Okla. Crim. 87; State v. Walton, 53 Ore. 557; State v. Meyers, 59 Ore. 537; Garcia v. State, 12 Tex.App. 336; Cowell v. State, 16 Tex.App. 58; Gilbreath v. State, 26 Tex.App. 315; Crook v. State, 27 Tex.App. 198; Grant v. State, 67 Tex. Crim. 155; State v. Vance, 38 Utah 1; State v. Greene, 38 Utah 389; State v. Inlow, 44 Utah 485; Meldrum v. State, 23 Wyo. 12; Ivey v. State, 24 Wyo. 1. (3) The court committed no error in permitting the prosecuting attorney to ask the members of the jury if they would give to the testimony of a witness taken at a former trial and preserved in the bill of exceptions, the same weight they would give to the testimony of such witness if he were present and testified. If such testimony is held to be properly admissible, then there can be no doubt but that the question asked of the jury, on voir dire examination touching their qualifications to sit on the jury, was proper.

Higbee, C. Davis and Henwood, CC., concur.

OPINION

HIGBEE

An information was filed in the Circuit Court of Dunklin County on May 5, 1922, charging the appellant with murder in the first degree in that he, on April 5, 1922 deliberately, etc., shot and killed Irving Spinks. The venue was changed to Stoddard County where the cause was tried to a jury, resulting in a verdict finding the defendant guilty of murder in the second degree, and assessing his punishment at imprisonment in the penitentiary for a term of twenty years. On appeal the conviction was reversed for failure of the trial court to instruct on manslaughter, and the cause was remanded. [State v. Harp, 306 Mo. 428, 267 S.W. 845.] On a retrial of the cause on November 19, 1926, he was found guilty of manslaughter and his punishment assessed at imprisonment in the penitentiary for a term of five years and he again appealed.

The evidence on the second trial was substantially the same as on the first trial. On the first appeal the evidence was clearly summarized in the opinion written by Judge Railey, and as no point is made by the appellant on the sufficiency of the evidence it need not be restated.

I. On November 16, 1926, the defendant filed a motion for his discharge under the provisions of Section 4041, Revised Statutes 1919, because the State had failed to bring the case to trial before the end of the third term of the Circuit Court of Stoddard County after the transcript of the record in the cause had been filed in the office of the clerk of the circuit court of said county, which was on September 13, 1922.

Two terms of the Circuit Court of Stoddard County are held each year, beginning on the second Mondays of March and September. The case was docketed for trial on October 12, 1922, during the September term, and continued to the next term of court on the application of the State. At the March term, 1923, the defendant was tried, found guilty and appealed as heretofore stated. The mandate of this court, reversing and remanding the cause for new trial, was filed in the office of the clerk of the circuit court on January 28, 1925, and, as appellant's learned counsel say, thereafter said cause stood for trial in said court as if no conviction had ever been had therein. At the succeeding March term, the cause was continued by agreement of the parties on the application of the State on account of absent witnesses. At the September term, 1925, and also at the March term, 1926, the cause was continued on the application of the State on account of the absence of witnesses. The defendant was out on bail and at all times was ready for trial. The motion to discharge was overruled. Appellant insists this was error. Section 4041, Revised Statutes 1919, reads:

"If any person indicted for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term."

We are not concerned about the continuance at the September term, 1922. If the defendant was entitled to be discharged it was on account of the laches of the State in failing to bring the cause to trial after the reversal. The first of the three continuances after the reversal at the March term, 1925, was by agreement. Appellant cannot blow hot and cold; he cannot except to a continuance made with his consent, nor make it the basis of a motion for his discharge under the statute. "The consent of the accused will toll the statute." [State v. Nelson, 279 S.W. 401, 403.]

II. The defendant assigns as error that "the use by the State of the testimony of the witness Ben Mercer taken...