State v. Hedgepeth

• Decision Date: 20 November 1894
• Parties: STATE v. HEDGEPETH.
• Court: Missouri Supreme Court

28 S.W. 160

125 Mo. 14

STATE v. HEDGEPETH.

Supreme Court of Missouri, Division No. 2.

November 20, 1894.

CRIMINAL LAW — CONTINUANCE — PRIVILEGED COMMUNICATIONS.

1. Where a trial for robbery was, at defendant's request, continued once to allow defendant to procure counsel, once because of his attorney's illness, and once pending the decision of his motion that the property taken from him be handed to the sheriff to use as evidence on the trial, the denial of a further continuance, on the ground that his counsel was engaged in the trial of another case, will not be disturbed, where the court offered to assign him counsel, and he declined the offer, though on the trial he was not represented by counsel.

2. An attorney is a competent witness against his client as to all matters not privileged.

3. A statement by one under indictment, to an attorney, not retained by him, whom he requested to carry a message to the chief of police, is admissible in evidence.

Appeal from circuit court, St. Charles county; James F. Green, Special Judge.

Marion Hedgepeth was convicted of robbery, and appeals. Affirmed.

McDonald & Howe and Chas. T. Noland for appellant. R. F. Walker Atty. Gen., and Morton Jourdan, for the State.

BURGESS, J.

Defendant was jointly indicted with several other persons in the circuit court of St. Louis county, charged with robbing the Adams Express Company of a large amount of money, about $20,000, by force and violence, and by putting the agent of said company in charge of said property in fear of immediate injury to his person. Afterwards, at the May term, 1892, of said court, on his application, he was granted a change of venue to the circuit court of St. Charles county. At the September term, following, of the St. Charles circuit court, the cause was set for trial September 20, 1892. On September 20th, following, defendant appeared in the St. Charles circuit court; and, Martin and Bass no longer being his attorneys, the cause was continued until December 12th, so that defendant might secure counsel. On December 12, 1892, Marshall F. McDonald appeared in the St. Charles circuit court as the attorney of defendant, and, as he was too ill to properly discharge his duties to his client and the court, the cause was continued to the next regular term, and set for trial on the first day thereof. On the first day of the said term, — it being the March term, 1893, — defendant filed a motion for a continuance, and for an order on the Adams Express Company to produce money and property taken from defendant at the time of his arrest, and place the same in the hands of the sheriff of St. Charles county to be used as evidence in the cause. The court granted a continuance of the cause to next term, September 1893, but denied the prayer for an order on the express company to place the said money and property in the hands of the sheriff. On September 11, 1893, defendant filed a motion for a continuance, which was by the court overruled; and he immediately filed a motion for a change of venue, based upon prejudice arising in the community after the transfer of the case, and for a special judge to try the cause. On the following day, September 12, 1893, the court sustained the application for a special judge, and set the cause for trial September 18, 1893, and requested the Honorable J. F. Green, judge of the Twenty-First judicial circuit, to try the cause. On September 18th, the day named by the court for the trial of the cause, the Honorable J. F. Green failed to appear, and the sheriff of St. Charles county adjourned court until the next day, September 19, 1893. On September 19th the Honorable J. F. Green appeared, and presided as special judge, and overruled defendant's application for a change of venue, and set the cause for trial September 27th, next following. On September 27th defendant's attorney, Marshall F. McDonald, did not appear, being engaged elsewhere in the trial of a case. On September 28th the cause was called for trial, and McDonald was still absent. The court then offered to appoint an attorney for defendant, but he refused to accept the services of an attorney appointed by the court. The court then proceeded with the trial, and during its progress the state introduced as a witness one Joseph Furling, and defendant objected to his giving any testimony. The witness testified that he was an attorney practicing his profession in the city of St. Louis, but that he had never been the attorney of defendant. The objection was then overruled, and the witness testified as follows: That he had practiced law in the city of St. Louis 14 years. That he frequently visited the jail to see his clients, and that, on one occasion, defendant called to him, and said, "I understand you and Harrigan are pretty thick." That, when he replied, "Yes," that he and Chief of Police Harrigan were good friends, defendant then asked witness to go and see Harrigan, and see if he would not let him off with 15 years' imprisonment in the penitentiary if he pleaded guilty. That witness saw Chief Harrigan, and reported to defendant that Harrigan refused to accept the offer. Witness stated that defendant frequently spoke to him about securing a light sentence in case of a plea of guilty, but informed witness that he had no money to employ an attorney to fight his case, and hence it was best for him. The said Furling testified also that, at the time of these alleged interviews between defendant and himself, defendant was confined in the St. Louis jail upon an indictment for the...