State v. Hedgepeth
| Citation | 28 S.W. 160,125 Mo. 14 |
| Parties | The State v. Hedgepeth, Appellant |
| Decision Date | 20 November 1894 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Charles Circuit Court. -- Hon. James F. Green Special Judge.
Affirmed.
McDonald & Howe and Charles T. Noland, for appellant.
(1) The court should not have forced the prisoner into trial on the twenty-eighth of September, 1893, while his attorney employed and paid to defend him, was engaged in another court in the trial of a case, but should have continued the cause to the next term, or postponed the trial to a day certain. The court's action was an abuse of the discretion lodged in it by law. Daughtery v. State, 26 S.W. 60; Bates v. Com., 16 S.W. 528; State v Dusenberry, 112 Mo. 277; State v. Bailey, 94 Mo. 311; State v. Jewell, 90 Mo. 472. (2) If Furling testified to statements made to him by the prisoner while he was acting as the attorney of the prisoner in endeavoring to secure a lighter sentence by reason of a plea of guilty, such evidence was incompetent and he was an incompetent witness. If Furling was not the attorney of Hedgepeth then the conversations between them were inadmissible unless they are confessions, and as no foundation for the admission of such testimony was laid, it was error to admit such conversations or confessions in evidence. State v. Kinder, 96 Mo. 548; State v. Rush, 95 Mo. 199; State v. Patterson, 73 Mo. 696; State v. Phelps, 74 Mo. 128; State v. Duncan, 64 Mo. 262; State v. Hopkirk, 84 Mo. 278; 1 Greenleaf on Ev., secs. 219-230; 1 Phillipps on Ev., sec. 543; 1 Wharton's Crim. Law, sec. 698; Conley v. State, 12 Mo. 464. (3) If the testimony of Furling was admissible, then the court should have instructed the jury relative to extrajudicial confessions. State v. Brooks, 92 Mo. 592, and authorities cited in Judge Sherwood's dissenting opinion.
R. F. Walker, Attorney General and Morton Jourdan, Assistant Attorney General, for the state.
(1) The allegation that the court committed error in the exclusion of material and competent testimony offered on the part of the defendant is contradicted by the record, which not only shows that the defendant himself refused to testify, but that he did not offer a single witness or a particle of testimony in his behalf; and, inasmuch as allegations in the motion for new trial do not prove themselves, this complaint will not be considered. State v. Welsor, 117 Mo. 570; State v. Foster, 115 Mo. 451. (2) The same is true of the complaint that the court refused proper and legal instructions offered on behalf of the defendant; none were asked and none were refused; hence, this alleged error will not be considered. State v. Welsor, supra; State v. Foster, supra. (3) The court committed no error in requiring defendant to go to trial without counsel. The granting of continuances is addressed largely to the discretion of the trial courts, and unless it clearly appears that such discretion has been abused, the supreme court will not interfere. State v. Murphy, 118 Mo. 7; State v. Banks, 118 Mo. 117.
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.
Afterward 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 that day defendant appeared in the St. Charles circuit court, and, Martin and Bass no longer appearing as his attorneys, the cause was continued until December 12, 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 Hon. J. F. Green, judge of the twenty-first judicial circuit to try the cause. On September 18, the day named by the court for the trial of the cause, the Hon. J. F. Green failed to appear, and the sheriff of St. Charles county adjourned court until the next day, September 19, 1893. On September 19, the Hon. 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 27, next following.
On September 27, defendant's attorney, Marshall F. McDonald, did not appear, being engaged elsewhere in the trial of a case. On September 28, 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 as to him 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 fourteen 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 fifteen 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 crime of which they were talking.
After the state closed its evidence defendant declined to introduce any testimony and the jury returned a verdict of guilty and assessed his punishment at twenty-five years in the penitentiary.
Defendant then filed his motion for a commutation of the sentence, which was then fixed at twenty-five years in the penitentiary, the term to commence from the date of his arrest on the tenth day of February, 1892. From the judgment and sentence, defendant appeals.
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