State v. Hickman

• Citation: 75 Mo. 416
• Parties: THE STATE v. HICKMAN, Appellant.
• Decision Date: 30 April 1882
• Court: Missouri Supreme Court

75 Mo. 416

THE STATE

v.HICKMAN, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Bates Circuit Court.--HON. JAMES B. GANTT, Judge.

REVERSED.

Parkinson & Abernathy for appellant.

The action of the court below in overruling the two motions for continuance, ( vide Rec. pp. 13 and 17,) and compelling appellant to trial on the day after arraignment and before a reasonable time had elapsed for the return of process for certain witnesses within the jurisdiction of the court, is a literal application of the statute of continuances (§ 1886), but is subversive of the guaranty contained in section 22 of article 2 of the constitution of Missouri, and is or may become as administered and applied in this case a violation of article 3. Goodman v. State, Meigs (Tenn.) 195; Dominger v. State, 7 Sm. & M. 475; 2 Story's Const., (2 Ed.) §§ 1792, 1794; People v. Diaz, 6 Cal. 248; Hyde v. State, 16 Texas 445; Van Meter v. People, 60 Ill. 168; Att'y Gen. v. Eau Claire, 37 Wis. 400; McCabe v. Mazzuchelli, 13 Wis. 478; Wassels v. State, 26 Ind. 30. The interpretation given of the act of 1875 in State v. Miller, 67 Mo. 604, and followed in State v. Hatfield, 72 Mo. 518, and doublingly followed in State v. Underwood, 75 Mo. 230, is an interpretation of an affirmative statute--a statute too, that may well be regarded as simply declaratory of a general power inherent in all trial courts. But section 1886 is a statute couched in negative phrase. Potter's Dwarris, pp. 70, 71, 79. If it be granted, however, that section 1886 although a negative statute is (under Cokes exceptions, Potter Dwarris See., pp. 71, 72,) simply declaratory of a judicial power always existing in trial courts on matters of continuance, it may and should be so construed as to be made effective within constitutional limits and the settled course of criminal courts, and void only so far as any of its provisions or its administration contravenes the constitutional rights of a defendant; ( State v. Clark, 54 Mo. 17; Neenan v. Smith, 50 Mo. 525; Connor v. Chic., R. I. & Pac. R. R. Co., 59 Mo. 285; State v. Diveling, 66 Mo. 375;) and so construing it, the action of the court below is reviewable, and the facts show that the continuance should have been granted. State v. Wood, 68 Mo. 444.

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

HOUGH, J.

Pending a preliminary examination before a justice of the peace in Bates county, for the crime of grand larceny, the defendant was, on the 18th day of March, 1882, indicted in the Bates circuit court for the same offense with which he was charged before the justice. On the 27th day of March, 1882, he was arraigned and pleaded not guilty. On the day following, his case was called for trial, whereupon he made an application for a continuance on the ground of the absence, among others, of several witnesses, who resided in Miller county, for whom subpœnas had been issued and mailed to the sheriff of said county on the 23rd day of March, 1882, but which had not been returned, sufficient time not having elapsed for their service and return. The prosecuting attorney admitted that the absent witnesses would if present testify to the facts which the defendant in his application for a continuance stated he expected to be able to prove by them, and the application for a continuance was thereupon overruled, and the defendant was forced to go to trial, and was convicted and sentenced to three years' imprisonment in the penitentiary. The statement in the affidavit of what the absent witnesses would swear to if present, was read at the trial on behalf of the defendant. The State was permitted to prove, against the objection of the defendant, that one of defendant's absent witnesses had made statements in contradiction of the facts which the prosecuting attorney had admitted said absent witness would swear to if present. The circuit court also permitted the State to introduce evidence of the declarations of one Reed, who was jointly indicted with defendant, made in the absence of defendant and long after the date of the alleged larceny.

1. CRIMINAL LAW: absent witness: continuance.

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 subpœnas had not been issued in good faith or that the same could not be served. Section 22, article 11 of the constitution, provides that in all criminal prosecutions the accused “shall have process to compel the attendance of witnesses in his behalf,” and in pursuance of this provision it has been enacted by the legislature that “every person indicted or prosecuted for a criminal offense shall be entitled to subpœnas and compulsory process for witnesses in his behalf.” R. S. 1879, § 1848. Section 1886, Revised Statutes, which provides that when the prosecuting attorney will consent that on the trial the facts set out in the affidavit, which the party asking for continuance expects to prove by the absent witness, shall be taken as and for the testimony of such witness, the trial shall not be postponed on account of the absence of such witness, was never intended to deprive the accused of his constitutional and statutory right to have compulsory process for his witnesses. This section can only be invoked by the State after the accused, by exercising reasonable diligence, shall have unsuccessfully employed the power of the court to secure the personal presence of such of his witnesses as may be within the reach of its process. He is entitled to a reasonable time to have a subpœna which has been seasonably issued, served and returned, and if the...